'Minor Human Errors' Stymie Bid for Multi-Million-Pound NHS Contracts

In public procurement exercises, the tricky business of uploading bids to e-tendering sites can be rendered more hazardous by leaving it to the last moment. In a case on point, a series of minor human errors led to a missed deadline and the loss of a company's chance to compete for a multi-million-pound NHS contract.

The company, a leader in its field with a turnover of around £38 million, intended to bid for information services contracts that were divided into four lots. It asserted that it was prevented from participating in the procurement process due to a difficulty in uploading a single document to an e-tendering portal.

Following an investigation, NHS England excluded the company from the tendering process on the basis that it had not submitted a compliant bid prior to the date on which the procurement exercise closed. In challenging that decision, the company characterised it as manifestly flawed and irrational.

Rejecting the claim, however, the High Court found that the portal was neither defective nor unsuitable for the task in hand. Its functionality was clearly explained to all tenderers, who each had to navigate it in the same manner and faced the same consequences if they failed to submit their bids prior to the deadline.

The problem did not lie in the design of the portal but in a series of minor human errors in its use. Those errors occurred in circumstances where the company had left it to the last moment to process its submission. It failed to meet the clearly stated deadline for reasons that were entirely its own responsibility.

Nothing happened to justify waiving the deadline and, having properly investigated the matter, NHS England was entitled to take the view that, were it to do so, there would be a very significant risk that it would not be complying with its equality and transparency obligations, resulting in unfairness for other tenderers.