HT-2025-000079 - [2025] EWHC 2634 (TCC)

The Contract is to cover the provision of medical assistance for armed forces personnel serving overseas. Its importance is self-evident. It is one of only two contracts which the Defence Medical Services classify as being a “UK StratCom Key Contract”. The proper provision of the medical assistance is essential for the performance of military operations overseas.

The Claimant has provided those services since 2012 under a series of contracts, the most recent of which was due to end on 1^st April 2025. It was successful in re-tendering exercises in 2016 and 2020.

The Invitation to Tender was sent out on 24^th October 2024. Although three tenders were received, only those from the Claimant and Healix were compliant.

The evaluation process to identify the Most Economically Advantageous Tender gave a weighting of 45% to technical criteria and of 55% to cost criteria. Performance against the technical criteria was scored by reference to four scores. In order to be acceptable a tenderer had to achieve a score of either 100 (the highest possible score) or 70 (the second highest) for each criterion.

A score of 100 was awarded in respect of:

“A comprehensive response which provides high confidence to the Authority that the Tenderer will meet all aspects of the requirement set out in the question. In the Authority’s professional judgement, negligible risk to the Authority, in meeting the requirement.”

A score of 70 was awarded in respect of:

“A good response which provides sufficient confidence to the Authority that the Tenderer will meet all aspects of the requirement set out in the question. In the Authority’s professional judgement, there is minor risk in the aggregate, to the Authority, in meeting the requirement.”

The Defendant’s evaluation report showed how the Claimant and Healix had performed against fourteen technical criteria. Five of those were marked simply as “pass” or “fail” and both tenderers passed all five. The remaining nine were scored. The Claimant scored 100 for all nine criteria while Healix scored 100 for four criteria and 70 for the remaining five.

The cost of Claimant’s tender was more than twice that submitted by Healix. Accordingly, when account was taken of the cost criteria, Healix’s tender was found to the more economically advantageous of the two.

The Defendant says that there were material differences between the Contract and that which was being replaced. In his evidence for the Defendant, James Nugent said that it was believed that the arrangements under the Contract would result in a more comprehensive healthcare provision than under the existing arrangements and would provide better value for money for the taxpayer. An element in both the current and proposed arrangements is the making of Requests For Information (“RFIs”). Under the Contract payment will be made for RFIs and there would be a new RFI Management Plan. Mr Nugent says that the latter will eliminate duplicate requests and would result in medical support being provided more efficiently.

The Claimant says that the Contract is not in fact materially different from its predecessor. It says that the RFIs (or at least RFIs other than Bespoke RFIs) were provided without charge under the existing arrangements and so the provision that there should be payment for them was a benefit for the contractor and not for the Defendant. As to the changes in respect of RFI management the Claimant says that these are changes in the way in which the Defendant rather than the contractor proceeds. The Claimant says that the Defendant could have operated in this way under the existing contract and that it had been urging the Defendant to do so.

In support of the contention that the Contract is not materially different from its predecessor, Mr Barrett KC referred me to the business cases which had been submitted seeking approval to proceed to tender and subsequently to award the Contract. Mr Barrett submitted that these documents did not say as part of the argument in favour of approval that the Contract was different from its predecessor, let alone that such a difference was an argument in favour of the Contract. However, when the business cases are read as a whole and seen in context it is clear that there is no substance in this point. Under the business cases the course of going out to tender and subsequently awarding the Contract was identified as one of a number of options available to the Defendant. The other options included internal provision of the services and taking no action. The choice being set out was not between providing the medical services under different contracts but between using an external contractor and other courses which did not use such a contractor. The principal purpose of the business cases was to set out the economic, commercial, cost, and management cases for using an external contractor and to obtain funding approval for doing so. The references to the Contract being a continuation of the existing arrangements are to be read in that context. The business cases do not address differences between the existing arrangements and the Contract but when they are read in context it is not surprising that they do not do so and that failure does not advance matters.

There may well be scope for argument as to the extent of the differences between the existing arrangements and the Contract but it is clear that there are differences and that the Defendant sees them as being a benefit. I will consider the significance of that in addressing the balance of convenience below.

The Defendant and Healix say that 12 weeks will be needed to mobilise the service from the date that the Contract is awarded. The Defendant says that it will have to prepare Standard Operating Procedures for each medical procedure to be covered by the Contract and that the preparation and approval of these will take 12 weeks. The Claimant does not accept that this period would be needed, saying that it is not a requirement of the Contract that there be such Standard Operating Procedures. However, the Claimant’s point in that regard is a misreading of the Defendant’s evidence. The Defendant is not saying that the creation of such procedures is a requirement of the Contract but rather that it is action which the Defendant intends to take in order to ensure that the Contract operates smoothly. At the very least it is apparent that the Defendant believes that the preparation of the Standard Operating Procedures is desirable. In any event, James Clancey of Healix has provided a statement saying that Healix will need a period of 12 weeks to mobilise and to be in a position to undertake the services under the Contract. The Claimant does not contend that this is not a genuine assessment on the part of Healix and, indeed, the Claimant at one point suggested that it was an underestimate of the time that would be required. Accordingly, I will proceed on the basis that a 12 week mobilisation period will be needed.

The Defendant points to the 2025 Strategic Defence Review which set out the threats faced by the United Kingdom and which referred to the need to move to a state of warfighting readiness. The Defendant relies on this as a potent factor in the balance of convenience. It says that the change to the provision of medical services for service personnel which is involved in the Contract should be made now because it might not be possible to make that change in a time of conflict. That is because in a time of conflict there would be other demands on the Defendant’s resources and there might not be the capacity available to effect the change. In addition, the Defendant says that the change would have the potential for a degree of confusion on the ground and it would be undesirable for such confusion to be generated in a time of conflict. The Claimant says that the Defendant is overstating both the urgency of the situation and the difficulty of introducing the changes. It says that that proper reading of the Strategic Defence Review and of the statements made by senior military personnel does not indicate that conflict is imminent in the way suggested by the Defendant. In addition, the Claimant says that it is of note that the existing arrangements have been re-tendered in times when service personnel have been engaged in conflict overseas. It says that this shows that the Defendant’s concerns are over-stated.I will address these points further when considering the balance of convenience.

The existing contract has been extended to 31^st December 2025 and the Claimant remains willing to continue to provide the medical services under the existing arrangements thereafter. However, the Defendant contends that further extension of the existing contract would expose it to legal challenge.