HT-2024-000023 - [2025] EWHC 63 (TCC)

A further or alternative aspect of OPC’s case is that if the suspension is lifted, with the consequence that the interim contract is terminated, there will be a negative impact on the future of the company in terms of loss of opportunities to develop the business.

As I have said, the ICB’s case is that this was an unexceptional contract for UCC care and that there will be many more for which the claimant can tender. Ms Stansfield in her evidence identified 50 such opportunities since 2016. The claimant is an experienced provider and will continue to hold a number of sites even after current contracts come to an end, as some are expected to do. The ICB submits that it is realistic to envisage that it will successfully bid for more.

Mrs Beverley-Stevenson, however, takes issue with Ms Stansfield’s figures. Of the 50 opportunities, her evidence is that 5 were withdrawn before award; 15 were Requests for Information, direct award notices or gave a broken website link; 9 were converted into OPC bids of which none was successful; 21 were not bid for by OPC. She sets out reasons why the claimant may not have bid. Since January 2022, OPC has submitted 20 bids of which four were successful but only three proceeded to contract award. At the time of her statement, OPC was bidding for two further contracts. She says that there are no other bids in the pipeline and little coming to market.

In particular, and in any event, OPC relies on the fact that its capacity to bid will be reduced or wholly removed as a result of redundancies in the bid team. That flows from Mr Beverley’s evidence that the Business Development and Growth Team will be cut, these being the people who engage with commissioners, source and assess opportunities, and take those bids forward. The evidence in this respect is generalised and there is no specificity as to why this team would be cut when it would appear to be central to the financial future of OPC. I do not consider the prospect of the bid team being significantly compromised as a realistic prediction. The claimant has every interest in bidding for future contracts as that is a key aspect of how it can maintain or improve its financial position. The suggestion that it would make its bid team redundant to the extent that it could not bid successfully makes no sense.

Mr Beverley also suggests that it is “highly likely” that OPC’s ability to meet financial standing criteria would be reduced. He identifies 3 past instances where that would be the case. Otherwise this suggestion is speculative and I give it little weight.

OPC also advances an argument that the new Provider Section Regime (“PSR”) under the Health Care Services (Provider Selection Regime) Regulations 2023 will result in sufficiently more direct awards in the urgent and primary market as to meaningfully restrict the claimant’s opportunities to obtain future contracts.

In Practice Plus Group Health and Rehabilitation Services Ltd. v NHS Commissioning Board [2022] 2082 (TCC), decided prior to the coming into force of the 2023 Regulations, HHJ Keyser QC (sitting as a Deputy High Court Judge) considered and rejected such an argument as speculative. The risk that this would happen depended on “the concurrence of a host of circumstances” – that the commissioning board would decide that the incumbent provider was competent to continue to provide the services; that the incumbent was willing and able to continue; that no change of service was deemed necessary; and that the board did not wish to test the market through a procurement exercise. The court concluded at [22] that “in the circumstances the matter relied on was so speculative and indirect as not to be such as to make it unjust for the claimant to be restricted to a damages claim anyway.”

Although the regulations are now in force the factors that go to the probability of their having the impact relied on by OPC remain the same. Ms Stansfield set out in her evidence the steps that an authority would go through to make a direct award, each of which was potentially subject to challenge by suppliers and in her view, as a commissioner of services, a similar number of procurements for primary and urgent care were likely to be put out for open competition. There was no countervailing evidence.

OPC also contended that it would no longer be able to meet financial standing requirements if it was not awarded the contract. This is a variation on the theme of its financial position and adds nothing to that argument. In any event, the ICB submits that in healthcare procurements there is commonly a range of financial standing tests including a guarantee from a parent company. In the procurement in issue in these proceedings there were three ways to meet the test of financial standing. These considerations support my view that this point takes matters no further.