Braceurself Limited v NHS England

High Court.

A useful summary of how the law applies to tender evaluation.

In the case of Braceurself v NHS England EWHC 1532 (TCC), the High Court examined the merits of a procurement challenge in respect of tender evaluation and was prepared to re-score the challenger’s tender, changing the result of the procurement.

In a judgment the Court has ruled that a manifest error in the evaluation of the Claimant’s tender was not a sufficiently serious breach of the procurement regulations to justify an award of damages despite the fact that, but for the Defendant’s error, the Claimant would have been awarded a valuable public contract.  The effect of this judgment, which may be concerning for private sector operators considering challenging the outcome of a procurement process, is that the Claimant was essentially left without a remedy despite having lost out on a valuable contract as a result of the Defendant’s error. 

High Court Judgment Template (bailii.org)

Court of Appeal.

Judgment has been handed down by the Court of Appeal in the procurement law case of 𝘉𝘳𝘢𝘤𝘦𝘶𝘳𝘴𝘦𝘭𝘧 𝘓𝘵𝘥 𝘷 𝘕𝘏𝘚 𝘌𝘯𝘨𝘭𝘢𝘯𝘥. The initial judgment attracted much attention in procurement law circles, and indeed a fair degree of criticism.

To summarise, for those unfamiliar with the case and original judgment:

– a manifest error was made in scoring the bids (this included confusing a ‘stair climber’ with a ‘stair lift’)

– that meant the wrong bidder was awarded the contract and Braceurself (the claimant) lost out

– despite the above, the breach was not found to be “sufficiently serious” for Braceurself to be entitled to a Francovich award of damages

The Court of Appeal has however 𝘂𝗽𝗵𝗲𝗹𝗱 that original decision. It was stated that the 𝘯𝘢𝘵𝘶𝘳𝘦 𝘢𝘯𝘥 𝘲𝘶𝘢𝘭𝘪𝘵𝘺 of the breach is the relevant legal consideration, as opposed to its 𝘤𝘰𝘯𝘴𝘦𝘲𝘶𝘦𝘯𝘤𝘦𝘴: “The effect of the breach is not and cannot be determinative of the issue as to whether the breach itself was sufficiently serious to attract an award of damages”. The judge at first instance had “carried out the balancing exercise in accordance with the applicable principles”. There was “no incoherence or breach of the principle of effectiveness as alleged by the appellant, and therefore no way round the application of the second Francovich condition”.

The Judge found the manifest error not to be sufficiently serious for a number of reasons which can be summarised as follows:

• It was a single breach in a very close competition;
• The misreading by the Respondent was at the excusable end of the spectrum and was a misunderstanding;
• The breach was inadvertent;
• The procurement itself was carefully planned.

The judgment also found there had been no manifest error in scoring in any event, and that “the judge erred in attaching legal significance to the misunderstanding about the stair climber/stair lift and/or failing to note that the underlying concerns about access were both valid and made in the contemporaneous documents.” It was stated “It is more likely than not that, but for those errors, the judge would have retained” the original score.