“The requirement is split into 4 Lots:

There is no limit to the number of Lots that can be bid for;

You can bid for one or more Lots;

There are generic questions that apply for every Lot – if bidding for more than 1 Lot then bidders only need to complete the generic questions once;

There are specific questions that apply for each Lot. Bidders need to complete questions relevant to Lot(s) bidding for;

No discounts should be offered if bidding for multiple Lots. Each Lot is standalone;

Period of contract: 6 years with effect from 01 April 2023 with an option to extend for an additional period of 36 months at the discretion of the Contracting Authorities and subject to satisfactory financial and contractual performance;

Closing date and time for Bidder clarification questions: By 12 noon, 28 June 2022;

Closing date and time for return of tender; Before 12 Noon on 12 July 2022; and

Variant bids will not be accepted.

“The Contracting Authorities will only accept documents for tenders placed on the eTendering portal that are received electronically, unless explicitly stated otherwise in the ITT.

Tenders submitted via the e-Tendering portal must be received in full prior to the closing time and date for receipt of tenders.

Bidders are advised that uploading of large electronic files may take some time and as such bidders must allow sufficient time to fully transmit all files prior to the closing time and date for receipt of tenders.

Immediately prior to submitting a tender electronically, the bidder must check the electronic files making up the tender for viruses, using current virus checking software and must remove all viruses from the files. In addition, the bidder must ensure that all files and documents are not password protected or restricted in anyway.

Corrupt, unreadable and/or password protected files will not be discovered by the Contracting Authorities until after opening of tender submissions and at the start of the evaluation process. If the electronic files containing the tender are corrupt, contain a virus, or are unreadable for any reason, those files cannot be evaluated.

The Contracting Authorities and NECS accept no responsibility for bidders misunderstanding instructions or incorrect use of the e-Tendering portal and shall not be liable or responsible for the loss, damage, destruction, or corruption of any tender, however caused.

Faults in the bidder's system are not the responsibility of the Contracting Authorities and /or NECS and no extension to the closing time or date will be made under those circumstances.”

“2.1 Instructions and guidance information has been designed to ensure that all bidders are given equal and fair consideration. It is important therefore that bidders provide all information asked for in the format and order specified.

2.2 North of England Commissioning Support (NECS) is utilising an electronic tendering tool (In-tend) (e-Tendering portal) to manage this procurement and communicate with potential bidders in accordance with Regulation 22 of the PCR2015 (SI 2015 No 102). […]

2.3 Bids must be submitted using the documentation provided within the ITT pack where applicable. Bidders are requested to input the organisation name within the documents where indicated. A list of those documents which must be submitted and the return date and time to ensure a compliant tender are outlined in ITT Schedule 8 Tender Response Checklist and ITT Schedule 9 Highest Scoring Bidder Validation Checklist. [….]

2.4 Please note that any attachments submitted in support of a response to a particular question should reference that question number. Any attachments not referenced to the question number or incorrectly referenced may result in information not being considered. […]

2.5 Where applicable, supporting attachments/evidence should be completed and submitted via the corresponding named placeholder. If there is a placeholder which has been set as mandatory and the response is ‘not applicable’, if there are no other options to select, bidders must submit a blank word document with the words ‘NOT APPLICABLE’ and upload within the placeholder for this question. Bidders are advised that only single documents can be uploaded to one individual placeholder. As such, where multiple documents are required to be uploaded as supporting information, this should be compressed into a zip file and uploaded to the relevant placeholder. Note: The e-tendering portal In-tend does not accept files with the same name. Please ensure any files uploaded as part of your response /submission have a different file name.”

…

2.7 On-line Questionnaire Part 1 and On-line Questionnaire Part 2 must be completed and / or submitted within the e-Tendering portal and On-line Questionnaire Part 3 must be completed within the e-Tendering portal. Additional Microsoft Word versions of Questionnaire Part 1 and Questionnaire Part 2 can be completed off-line and uploaded as an attachment for each and every member of a consortium and / or each material sub-contractor who is relied upon to deliver the contract. All mandatory questions MUST be answered otherwise the On-line Questionnaires cannot be submitted. If there is a mandatory question and a mandatory question response is ‘not applicable’ bidders must enter ‘NOT APPLICABLE’’ for this response question.’

“3.1 The response documents should include the bidder’s name and all documents and supporting evidence submitted with the tender must refer to the organisation that will be signing the contract.

3.2 The Contracting Authorities may, at their own absolute discretion, extend the closing date and time for the receipt of tenders specified in ITT Schedule 5 Tender Timetable.

3.3 Any extension granted under point 3.2 will apply to all bidders.

3.4 Bidders must submit their final tender by the closing time and date as specified in ITT Schedule 5 Tender Timetable. Tenders may be submitted at any time before the closing date and amended as many times as necessary before the deadline. Tenders received before the deadline cannot be opened until after the deadline for receipt of tenders. Bidders are reminded that they will need to re-submit a tender after making any amendments to a tender that had previously been submitted.

3.5 The Contracting Authorities will not consider any tender response received after the stated deadline and failure to submit a response by the deadline will result in the exclusion of the bidder from participating any further in this procurement.

…

3.10 Bidders must note in respect of electronically transmitted tenders, that uploading of large electronic files may take some time and as such they must allow sufficient time to fully transmit all files prior to the closing time for return of tenders.

3.11 It is the bidders’ responsibility to ensure that their tender has been successfully submitted. Tenders which are not submitted in accordance with the instructions detailed above, prior to the stated deadline will not be visible to the Contracting Authorities, and therefore cannot be taken further within the procurement process.”

“7.1 Bidders acting in contravention of the provisions set out in the ITT or any other information/instruction provided by the Contracting Authorities, will, at the sole discretion of the Contracting Authorities, be excluded from further participation in this procurement.”

…

‘More specifically, this means that the award criteria must be formulated, in the contract documents or the contract notice, in such a way as to allow all reasonably well-informed and normally diligent tenderers to interpret them in the same way.’

Tender responses were to be submitted via the e-portal;

Tenderers were to indicate which of the Lots they were submitting tender responses for, there being no requirement to submit Lots for any or any combination of Lots; and the Lots were to be evaluated separately for both price and quality.

In respect of attachments, they were to be uploaded to the correct location or ‘placeholder’ and all mandatory attachments were to be uploaded before the bids for each of the Lots being tendered for were to be ‘submitted’ via the portal.

The portal ‘does not accept files with the same name’.

Whilst the tenderer could choose how many of the Lots it was entering into, it would be submitting a single bid. This is the obvious implication of the ITT when read as a whole, and it is made clear by the fact (for example) that the various declarations that are required to be given in relation to the absence of collusion etc are made once in relation to the ‘Bid’ as a whole rather than being made on a Lot specific basis.

the deadline was Noon, 12 July 2022;

any failure to submit the single bid, containing each Lot tendered for, by the deadline, would result in:

whilst an express discretion to extend the deadline existed, as referred to at paragraph 3.2 and 3.3 of Schedule 3, this properly construed applied only prior to the expiry of the deadline, and also could only be exercised by granting the extension to all bidders. It was not therefore a discretion permitting NHS England retrospectively to extend the deadline after just one bidder had failed to meet it.

Although once submitted the Lots were going to be evaluated on a standalone basis, and tenderers might win one and lose another, the fact that they were to form part of a single bid, submitted once within the same portal, meant that an error in one Lot which prevented the bid from being submitted would have consequences for the other Lots, unless the problematic Lot was removed.

Faults in the bidder's system (be that the electronic system or the broader ‘system’ within the bidder for ensuring a compliant tender is submitted on time) were not the responsibility of the Contracting Authority and /or NECS and no extension to the closing time or date would be made if caused by fault on the part of the bidder’s system;

‘submitting’ the bid meant more than simply uploading the information to the portal. Uploading the information to the portal was merely one of the preparatory elements to the ‘submission’, rather than something which could be considered of itself a submission. Ms Rhee urged in argument that because the portal was being run by NECS on behalf of NHS England effectively as NHS England’s agent, the mere uploading of documents to the portal would itself constitute submission of those documents to NHS England. This is plainly not right. As is made plain on the express wording of the ITT, and clear to the RWIND tenderer, the act of submission of the content uploaded prior to the deadline is necessary for that information to become visible to the Contracting Authority. This is an important functionality for equality and transparency, and that functionality was made clear in section 3.11 of Schedule 3. It also has obvious practical importance for certainty around compliance with the (important) deadline. Indeed, whilst this would be the case even if subjectively this had not been understood by IIL, Mr PJ Kirby fairly accepted that he understood the difference between uploading information and submitting information:

Issue 1: Are the Claimant’s bid responses as entered and uploaded to the Portal for each of Lots 1 to 4 to be treated as four separate bids or as a single bid for the purposes of the Public Contracts Regulations 2015 (“PCR 2015)?

Answer: A single bid

Issue 2: Did the Invitation to Tender (“ITT”), objectively interpreted by a Reasonably Well Informed and Normally Diligent (“RWIND”) tenderer, require bidders to submit a single bid for Lots 1 to 4, or to submit separate bids for each of Lots 1 to 4?

Answer: A single bid

“Contracting authorities shall treat economic operators equally and without discrimination and shall act in a transparent and proportionate manner.”

‘Contracts shall be awarded on the basis of criteria laid down in accordance with regulations 67 to 69, provided that the contracting authority has verified in accordance with regulations 59 to 61 that all of the following conditions are fulfilled:—

(a) the tender complies with the requirements, conditions and criteria set out in the contract notice or the invitation to confirm interest and in the procurement documents, taking into account, where applicable, regulation 45;’

“Where information or documentation to be submitted by economic operators is or appears to be incomplete or erroneous or where specific documents are missing, contracting authorities may request the economic operators concerned to submit, supplement, clarify or complete the relevant information or documentation within an appropriate time limit, provided that such requests are made in full compliance with the principles of equal treatment and transparency.”

‘The position is the same under the 2014 Public Procurement Directive which, as we have seen, states expressly in Art.56(1) that tenders must comply with stated requirements to be accepted.

The question arises, however, as to whether there are any exceptions to the requirement to reject late tenders. It is suggested that, whilst there is generally no discretion to do accept a late tender, it is arguable that there is a duty to do so, at least prior to the award decision being made, when the tender is late because of the fault of the contracting authority itself. In Scan Office Design SA the Court ruled that it was unlawful for the Commission to accept the late tender even though the Commission had erroneously sent the specifications to the tenderer’s Italian, rather than Belgian, branch. However, the court did not specifically address the argument that this error justified the Commission’s action and its conclusion may have been based on the fact that, given ongoing communications between Scan and the Commission, the error caused no prejudice. In cases in which prejudice does exist it would, it is submitted, be acceptable to consider a tender that is late. There is no violation of equal treatment since a tenderer who has been misled, or affected by some other exceptional circumstance, is not in a comparable situation to one who has not. In the domestic High Court case of Leadbitter Richards J, without referring to the Scan case, suggested that there “may be circumstances” where proportionality will “exceptionally” require acceptance of the late submission of the whole or part of a tender “most obviously” when it results from fault on the part of the procuring entity.

It is important to recall here that the contracting authority has a discretion to extend the deadline before its expiry to deal with situations of difficulty, whether of individual tenderers or more general (such as adverse weather) and is even required to extend it in certain cases: this issue was considered at paras 7-133—7-134 above. This makes it less necessary to consider late tenders in practice.’

The precise terms of the tender documents require close analysis in any given case. It is important to consider whether, for instance, a Contracting Authority has reserved to itself a wide discretion to admit late tenders or permit missing documents to be furnished after a deadline has expired or whether a bright line exclusionary rule has been adopted;

Even where a bright line rule appears, a Contracting Authority must consider the principle of proportionality. There may be exceptional circumstances, such as the fault of the authority, which justify the admission of a late tender or missing documents;

Where the Contracting Authority does have a discretion, it must only exercise it in accordance with the principle of equal treatment. One element of this requires that any missing documents or information must objectively be shown to pre-date the tender deadline;

The starting point is that deadlines are to be respected and only exceptionally should a Contracting Authority permit the submission of late or missing information.

‘As to proportionality, the judge acknowledged the "harsh economic consequences of the inability to tender" as expressed at paragraph 70. However, he gave "weighty reasons against the grant of an extension". I agree with those reasons. The decision not to permit an extension was not, in the circumstances, disproportionate. I have already read paragraph 70 of the judgment where the reasons are set out. These are put as an objective test, but it is clear, in my judgment, that the relevant considerations were kept in mind by the respondents. I also agree with the approach of David Richards J in Leadbitter and I accept that it reflects the earlier authorities. A deadline is a necessary part of a tendering process. The deadline was plainly stated in readily accessible documents. There is no fault by the respondents; they needed to be conscious of their duty to treat tenderers and potential tenderers equally and to avoid suggestions of favouritism towards a particular party. The failure to tender arose from a single and very unfortunate failure, though against the background of a failure by Mr Azam and his firm to monitor what would seem to be documents sensible to be monitored by a firm doing this type of work, it was the failure to take action on the receipt of the letter of 23 December. The need for an extension could not be attributed to any fault on the part of the respondents or to any factor outside the control of the appellants.’

‘This was, said Mr Nicholls, and I agree, not a case in which the overlooking of the deadline was anyone's fault but Azam's. It was a straightforward and wholly unexceptional case in which a proposing bidder had simply overlooked the deadline. If an extension ought to have been granted in this case, then Mr Nicholls said it would be difficult to see why it should not be granted to anyone who overlooked the deadline and sought an extension, an approach that would effectively emasculate the deadline condition. Moreover, the vice in Azam's case was that it necessarily involved a violation of the principle of equality between tenderers required by the 2006 Regulations. To extend Azam's time to present its bid in the unexceptional circumstance of its case would be to give it an advantage denied to all other tenderers. There might, for example, Mr Nicholls said, be some who had rushed the presentation of their bid in order to meet the deadline but who could have improved it had they had an additional week. Moreover, in an oversubscribed competition such as this one was, in which there would have to be a proportionate scaling down of the awards of "new matter starts" to the successful bidders, the introduction of a late bidder into the system would have the potential to affect those awards in a way which would not otherwise arise.

I would accept Mr Nicholls' submissions as to why on the facts of this case there was nothing disproportionate about the Commission's refusal to change the tender rules to accommodate the unexceptional circumstance that a particular proposing tenderer had, through his own carelessness, missed the deadline. Any different decision by the Commission would, I consider, have been unprincipled and would have involved an unjustified violation of the requirement of equality of treatment imposed by the Regulations’

the exercise of discretionary powers necessarily involves judgement on the part of the contracting authority. The court must respect this area of judgement and will not intervene unless the decision is unjustifiable. This is the proper meaning of a manifest error in this context (paragraph 55);

exercising a discretion to waive terms which are stated as applying without exception is a departure from the terms of the procurement process and is therefore an exceptional course. This is because a waiver of such terms carries the very risks of unequal treatment, discrimination and a lack of transparency which the contracting authority is required to avoid (paragraph 56);

there may be circumstances where proportionality will, exceptionally, require the acceptance of the late submission of the whole or significant portions of a tender, most obviously where it results from fault on the part of the procuring authority (paragraph 68);

in general, even if there is discretion to accept late submissions, there is no requirement to do so, particularly where it results from a fault on the part of the tenderer (paragraph 68).

‘About 11.40am (20 minutes before deadline), our bid was complete and ready to be submitted, ie all answers and associated mandatory attachments for all lots were all uploaded. Upon pressing 'Submit Return', the portal stated that there was an issue with Document 10 SPD Questionnaire Part 1 and 2. I believe that portal suggested that there was an issue with said attachment and that I remove the current attachment, then upload again, which I did. I am sorry, I did not take a screenshot at that particular error message. I then pressed 'Submit Return' once again, the portal then stated that there was a problem with SV02d, again I did not or take a screenshot of the exact error, due to the deadline closing. I removed attachment SV02d, then re-uploaded the same document. I attempted again to submit the tender, the portal stated that there was another issue with SD04d (mandatory attachment), which I removed and then reuploaded. However SD04d did not appear in the portal as being successfully uploaded, see pages 6 & 7 of the screenshots as the button remained red. When I attempted again to upload SD04d, the portal then stated "The file you are trying to upload already exists. Please try again", see page 6 of the screenshots. I attempted to submit the return, but the portal then stated "All mandatory tender documentation placeholders must be filled before submitting this return", see page 7 of the screenshots. At 11.54am (6 minutes before deadline), I sent a message to the Commissioners (and procurement) via the portal to seek your assistance about this issue and also to notify you that I had this problem because our bid was complete and ready to be submitted. There was no time to call the portal helpdesk. I cannot recall how many more times I tried to upload SD04d (after sending the message at 11.54am), I think it was around 3-4 times. About 11.57am, I thought it would be wise to take screenshots of the portal to evidence that: a. our bid was ready for submission, ie all questionnaires had been answered and all mandatory attachments had been uploaded (with the exception of SD04d) and b. to evidence the error message associated with attachment SD04d that prevented me from submitting our bid before the 12pm deadline. I assume that the portal had an audit log of this too?’

He concluded that he was therefore prevented by the Portal from submitting IIL’s bids for any of Lots 1, 2, 3 or 4. At the end of his witness statement, he ventured an explanation at paragraph 73:

Subject to the later need to remove and upload a document, the ‘last’ document required to have been uploaded was uploaded at 11.40.00. As shown in the Audit View log, this was document WF01d – Lot 4 Midlands West Staffing Plan.docx.

Thereafter, as shown in the Blue and White Log, between 11.41 and 11.43, Mr PJ Kirby viewed the various Return Documents, presumably checking their completeness prior to pressing Submit.

At 11.49, Mr PJ Kirby pressed the ‘Submit’ button, as recorded as ‘Website Return Started’ in the Blue and White Log. He did not do this at 11.43, as Mr PJ Kirby had said in his witness evidence or 11.40 as he recorded in his contemporaneous message, but at 11.49, some 11 minutes before the deadline expired.

As Mr PJ Kirby explained, he then saw an error message asking him to remove and re-upload ITT Document 10, SPD Questionnaire Part 1 and 2 NHSE823_Inhealth.pdf (‘Document 10’). This error message was specific, comprehensible and successfully acted upon; indeed Mr PJ Kirby does not suggest otherwise. This conclusion is also supported by the Audit View Log. Although it does not specifically identify it, the ‘Document Removed’ at 11.50.20 was obviously Document 10, and it was (re-)uploaded at 11.50.40. Thus, it took something less than a minute to read, understand and act on the message correctly. I therefore conclude that the message was easily understood, was in no way problematic and could not of itself be considered any type of inherent flaw in the software. The Blue and White Log shows that the Submit button was immediately pressed following the upload (at 11.50).

This generated another message. Mr PJ Kirby’s evidence is that it was similar to the previous one, and related to SV01d. I accept this is the case; in other words it was another specific and easily understood message relating to a particular identified document and was capable of being actioned successfully in a short period of time.

.

The Audit View Log shows ‘Document Removed’ at 11.50.56. It is not clear from the face of the Audit View log which document was removed, but because of the other evidence in the case I accept that it was probably either SV01d or SD04d. It is clear from whichever log is examined, however, that there was no other successful upload to the portal from this moment on. Therefore, where Mr PJ Kirby has described, either in his contemporaneous message or in his witness evidence, that further uploads took place, he is certainly mistaken.

From the screenshots which Mr PJ Kirby took at the time, it can be seen that the placeholder button for SD04d was, very shortly before midday, coloured red, making it clear that a document was still required to be uploaded into this placeholder. I find it highly improbable that the button was red when the initial attempt to Submit happened at 11.49, as it would have been obvious that the bid was not yet in a position to be submitted if a red button was still showing. It therefore must have turned red at the same time as the document was removed at 11.50.56. This means that the document which was removed was whatever the document was that sat in the placeholder for Lot 4 Engagement and Comms plan.

This being the case, it may be that Mr Kirby made an error in removing a document from the SD04d placeholder having been given a clear message which, on his own evidence, related to a different document, SV01d. However, it is equally likely to me that he simply looked on the screen for document SV01d, and removed it. He may not have noticed that it was (most probably, in my determination) wrongly in the placeholder for Lot 4 Engagement and Comms plan. This therefore emptied the SD04d placeholder and the button turned red.

Upon trying to refill the placeholder, Mr PJ Kirby was met with the message, ‘The file you are trying to upload already exists. Please try again’. This is because it is most likely that, having removed SV01d, Mr PJ Kirby mistakenly attempted to (re-)upload SD04d because he was looking at the placeholder description. However, this is a document which, if I am right, had never in fact been removed from the system. I reject his suggestion in Mr PJ Kirby’s witness statement that he successfully re-uploaded SV01d and it was following this that he got a further message about SD04d, because the logs are inconsistent with such an account. I also reject the suggestion that the message occurred when the ‘Submit’ button was pressed – it would have occurred when he was attempting to upload the document, prior to pressing submit.

This analysis is supported by Mr PJ Kirby’s screenshots, which show (albeit on a page without date and time, but which I take to be properly part of the sequence of screenshots as Mr PJ Kirby described) SD04d was in the system shortly before noon (although in light of what later occurred, likely in my judgment to have been in a corrupted or incomplete form). Indeed, whilst Mr PJ Kirby was obviously in a panic, when taking the screenshots he would have necessarily seen the existence within the portal of the very document that he was trying to upload (again) and the meaning of the error message was – at least objectively - obvious. This therefore evidences a prior error, in that document SD04d had most probably been uploaded into the portal and into the wrong location, and probably SV01d likewise.

Because it is not possible in any log to see unsuccessful upload attempts, it is not possible to see how many times or for how long Mr PJ Kirby attempted in vain to upload a document which already existed within the portal. However, he accepts that a point soon came when he spoke with his boss and concentrated not on trying to solve the issue, but on taking screen shots of the system to establish what the situation was.

Ultimately, the expiry of the deadline passed at noon on 12 July 2022, and IIL had plainly not in my judgment submitted its tender to NHS England as required by the ITT prior to its expiry.

Whilst I will deal with the investigations which followed within NHS England and NECS below, I conclude that the best evidence of the state of what was, or was not, within the portal as at 11.59 (and, indeed, save for the last ‘Document Removed’ at 11.49), is the communications provided by InTend upon enquiry. I have no reason to doubt their accuracy:

The initial error messages requiring specific documents to be removed and uploaded were easily understood and capable of being easily dealt with, as with Document 10. I do not regard their existence as any sort of defect within the InTend portal (indeed, no part of the pleaded case by IIL alleges this; it is at most context).

Had the prior error of mislocation of files not existed, it is more than likely that Mr PJ Kirby would have dealt as simply and successfully with document SV01d as he had done with Document 10;

As it happened, by mistake (potentially partly contributed to by a prior mislocation error), Mr PJ Kirby tried to upload a document to the portal which already existed on the portal.

The ITT was clear that no two files with the same name could be uploaded.

The error message explaining this was extremely clear. It is plain that the reason Mr PJ Kirby did not work out what the issue was was because he was in a panic. This itself was caused by the fact all this was happening at 11.50, with 10 minutes to go until the portal closed. In my view, it is unlikely that Mr PJ Kirby spent more than a couple of minutes trying to think through and resolve the problem before, effectively, giving up, calling his boss and, no doubt as requested, concentrating on evidencing the state of affairs through screenshots.

I am left in absolutely no doubt that if the submission process had been started even 20 minutes earlier, Mr PJ Kirby – who was clearly experienced in e-tendering portals, and indeed the InTend portal – would have worked out that a simple human error lay behind the problem and it was not (and I so find) a problem with the software or the portal. It is clear to me that it would have been extremely straightforward for Mr PJ Kirby either (1) to find SD04d – indeed, it can be seen on the screenshot – and remove it and re-upload it to the placeholder; (2) change the SD04d filename (e.g. add ‘v2’ into the filename) and upload it into the e-Portal; or (3) even upload a blank document into the placeholder. Any of these would have taken no more than a minute or so and could have allowed the bid in respect of all 4 Lots to proceed into the procurement. He could also have removed Lot 4 from the uploaded material and submitted just Lots 1-3. However, given his panic caused by the time pressure rather than any objective difficulty in understanding the problem, he did none of these things.

In my judgment, whilst I accept that subjectively Mr PJ Kirby did not understand the error message in the frantic and panicked state he was in at around 11.52am on 12 July 2022, it is clear that neither the software package nor NHS England were responsible for this. Whilst I have considerable personal sympathy for Mr PJ Kirby, I am left in no doubt that responsibility for the failure to submit the bid lies squarely with IIL. I should add that, as Mr PJ Kirby fairly pointed out, he was only able to upload documents when provided to him by the wider team, and it may well be unfair on him that the focus has necessarily, for the purposes of this litigation, been on the last minutes of the overall process.

Did the Claimant enter/ upload to the Portal:

before the deadline for the Procurement (at midday on 12 July 2022), such that – but for the error in uploading one document to the wrong placeholder for Lot 4 – the Portal would have allowed the Claimant’s bid responses for each of Lots 1 to 4 into the Procurement?

all the documents required for Lots 1 to 3 had been uploaded;

all the mandatory documents for Lot 4 had been uploaded, save that in my judgment it is probable that:

I accept that it is more likely than not that all the text boxes were complete;

I do not, however, agree with the premise of the ‘but for’ assumption inherent in the wording of the Issue. On the basis of my findings of fact, the ‘but for’ assumption would more appropriately be articulated, in my judgment, as follows: ‘but for human error in uploading documents to incorrect placeholders, and an inability to deal properly with clear error messages driven principally by the failure on the part of the Claimant to have commenced the submission process with enough time in hand prior to the deadline, the Portal would have allowed the Claimant’s bid responses for each of Lots 1 to 4 into the Procurement.’

On 12 July 2022, Linda Brady of NECS first contacted In-Tend by email at 1.08pm GMT stating:

Molly Schofield, of In-Tend, confirmed shortly after that there had been no downtime recorded, and that she had also checked with the other members of support and that they were unaware of any reports of suppliers experiencing issues accessing or submitting a return on the portal.

In-Tend then provided its views on the screenshots which had been provided by Mr PJ Kirby, which I have already referred to. Ms Schofield correctly indicated how the issue could have been simply dealt with.

On 13 July, IIL submitted a letter through the portal, which was forwarded through to Ms Elmes, amongst others. In response to the letter, Ms Elmes explained, and I accept, that she wanted to make sure that all bidders had been treated fairly and that as such it was important to establish that the error was not something which NHS England or NECS could have prevented. This sentiment was captured at the time by Cathy Harris, a colleague at NHS England, the same day in her email which asked:

As explained at paragraphs 21 and 22 of Ms Elmes statement, by around 15 July 2022, it became clear to Ms Elmes that the error was IIL’s. Following this, a series of exchanges took place in which various members of the NHS England team sought information about what had been uploaded, what could be retrieved and/or what was ‘visible’, as well as what the mechanical process would have to be in order to submit the bid. Various members of the team explored possibilities including whether the bid might be accepted in relation to Lots 1-3. On any view, there was a competent and fair-minded investigation seeking to establish as well as was possible what had happened prior to reaching any final conclusion. As set out in paragraph 25 of Ms Elmes’ statement, which I accept:

On 19 July 2022, Stephanie Cox (NECS) emailed Ms Elmes with further information, which I have quoted at paragraph 44(13) above, which explained that In-Tend could not recover SD04d as it appeared that there had been an issue when uploading it. On the same day, Ms Elmes was informed that NECS had identified that some of the generic mandatory documents which had been uploaded were incorrect. A draft of what was to be the Decision was circulated across the wider team on 19^th, and was finalised and sent on 20 July 2022.

The Decision stated:

IIL responded on 21 July 2022. In that letter, IIL admitted to what it termed an ‘administrative error’ in uploading an attachment to the wrong placeholder. As is clear from my findings above, I do not consider that this is a complete account of IIL’s errors which caused the ultimate failure to submit the bid on 12 July. NHS England responded on 26 July 2022, maintaining the Decision.

Did the Defendant access/request access to and obtain the Claimant’s bid responses and uploaded documents as entered into and uploaded to the Portal for each of Lots 1 to 4 before making the Exclusion Decision on 20 July 2022 and confirming that decision on 26 July 2022?

NHS England, and/or NECS on its behalf, asked sufficient questions as to the state of what IIL had successfully uploaded and submitted, and indeed the reasons why, in advance of its decision making to come to a sound and fair decision. It is not relevant whether it in fact obtained access to the documents themselves for the purposes of fairly determining whether IIL’s bid ought to have been allowed into the procurement process notwithstanding its failure to have submitted a bid.

‘52.1 The design of the Portal and/or the Exclusion Decision penalises bidders for a single error made in its response to one Lot by precluding the submission of its bids for any other Lots. This is contrary to the contrary requirement of proportionality.

52.2 There was no clear explanation in the ITT that an error in respect of one Lot would preclude the submission of any or all bids – contrary to the preclude any – contrary requirement of proportionality.

52.3 The design of the Portal and/or the Exclusion Decision operates to preclude the consideration of the Claimant’s validly uploaded bid responses for Lots validly uploaded bid responses for Lots 1, 2 and 3, contrary to the requirement of equal treatment.

52.4 The design of the Portal and/or the Exclusion Decision discriminates against bidders who have chosen to bid for more than one Lot against by operating to treat an error made in uploading one Lot as a reason for refusing to allow bids for all other Lots into the Procurement.

52.5 The design of the Portal and/or the Exclusion Decision constitutes a breach of an implied contract. In particular, as documents requested in support of Lots 1, 2 and 3 were “uploaded to the e-Tendering portal” (as required under Stage 1 of the evaluation process: see para 33 above). [sic]’

Was the design of the Portal defective in so far as it did not allow the Claimant's bid responses in respect of Lots 1 to 3 to be submitted into the Procurement, as a result of the Claimant uploading a single document into the wrong location / placeholder in respect of Lot 4?

The answer is ‘No’. I would also note, as set out above, the description of the assumed error is also inaccurate.

In circumstances where (i) any error in the uploading of documents was only made apparent when ‘submitting’ the entirety of a bidder’s response to all Lots and (ii) any error in uploading a single document would preclude the submission of bids for any of the Lots, it was all the more incumbent for the Defendant to ensure that any error message displayed was sufficiently clear to enable bidders to be able swiftly to identify and correct the error;”

In the premises, the error message received that “The file you are trying to upload already exists. Please try again” was lacking in transparency such as would permit a reasonably well informed tenderer, such as the Claimant, to proceed to the submission of its bids. In particular, it led the Claimant to believe that that the solution lay in removing the attached file from the correct placeholder and “trying again”.

Was the error message “The file you are trying to upload already exists. Please try again" in respect of the document the Claimant sought to upload in respect of Lot 4 transparent to a RWIND tenderer in all the circumstances?

The answer is that the error message was clear and transparent to a RWIND tenderer in the relevant circumstances.

‘(1) in a manner which was manifestly flawed and irrational;

the fact that another bidder was able successfully to upload its tender submission without encountering an error message or other issues

that inclusion of [IIL’s] bids could represent a breach of the PCR 2015. In particular, bidders would not thereby be treated differently or discriminated against because the [IIL’s] bids would be unaltered from the form it was when uploaded to the Portal.

by failing to take into account relevant considerations, including the considerations at paragraph 56 above, and

Issue 7 : Did the Defendant have a discretion pursuant to the terms of the ITT or otherwise as a matter of law to allow into the Procurement and evaluate the Claimant’s bid responses (in respect of (i) Lots 1 to 3 or (ii) Lots 1 to 4) the text of which had been entered into the Portal and in respect of which documents had been uploaded to the Portal (but which had not been accepted having been submitted) before the deadline?

Answer: NHS England did have a residual discretion as matter of law.

Issue 8: As a result of the design of the Portal and/or the Exclusion Decision, did the Defendant breach the PCR 2015, retained EU Law, and / or any enforceable obligation in the field of public procurement and / or implied contract, including with respect to:

proportionality;

by refusing or otherwise failing to evaluate the Claimant’s bid responses (in respect of (i) Lots 1 to 3 or (ii) Lots 1 to 4) as had been entered into and uploaded to the Portal (but which were not accepted as having been submitted) before the deadline?

Answer: No.

Issue 9: As a result of the design of the Portal and / or the Exclusion Decision, did the Defendant act in this regard in a manner which was manifestly erroneous and/or in breach of the PCR 2015 including by taking into account irrelevant considerations/failing to take into account relevant considerations and/or otherwise acting irrationally in refusing or otherwise failing to evaluate the Claimant’s bid responses (in respect of (i) Lots 1 to 3 or (ii) Lots 1 to 4) as had been entered into and uploaded to the Portal (but which were not accepted as having been submitted) before the deadline?

Answer : No.

Issue 10: Is the Claimant's complaint regarding the design of the Portal time barred pursuant to reg 92 of the Regulations?

In light of my findings, this does not arise.

Issue 11: In the event liability is established in favour of the Claimant in respect of any one or all of the issues identified in paragraphs 1 – 10 above, to what remedy is the Claimant entitled?

In light of my findings, this does not arise.