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Small Company Lost in Public Procurement Jungle

Companies which compete for government contracts are entitled to be treated fairly. However, overturning the result of tendering exercises can be an uphill struggle, as one former provider of locum doctors to the NHS discovered in a High Court case.

The relatively small company had provided temporary medical staff to NHS trusts for 18 years but was not one of the suppliers selected following a procurement process in respect of a new framework agreement. In challenging that outcome, it argued that it had been unfairly marked down and that the goalposts had been moved in a way which favoured larger companies with experience of managing supply chains.

In rejecting the company’s arguments, however, the Court noted that it had scored badly in the tendering process and had come nowhere near winning the contract. Its attack on the fairness and transparency of the exercise was misconceived. The Court also observed that the company was aware of the reasons for its rejection from the outset but had delayed about 16 months before lodging proceedings.

Expressing sympathy for the company, the Court criticised the intricate terms of the framework agreement, which ran to over 500 pages. Whether it had in fact improved the supply of locum doctors or saved public money was open to question. Faced with larger competitors, however, the company had never been likely to win the contract.