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

The Claimant alleges four breaches of the Regulations.

Grounds 1 and 2 are related and are based on an alleged lack of transparency in the Invitation to Tender. It is said that the reasonably well-informed and normally diligent tenderer’s interpretation of the ITT would be that the frequency with which RFIs would be made and the information required in response to such a request would be substantially less in terms both of frequency and the information needed than would in fact be the case. This meant that the RWIND tenderer would submit its tender on a false basis. The Claimant instead tendered on an accurate basis because of its knowledge (derived from the existing contract) of what would in fact be required. This meant that the Defendant was not comparing like with like when assessing the tenders of the Claimant and of Healix (ground 1). In ground 2 the Claimant advances a related argument saying that the difference between the true position and that which would be understood by the RWIND tenderer rendered the Contract materially different in character from that concluded. This would have allowed for the acceptance of the Claimant’s tender rather than that of Healix. In addition, the Defendant’s actions amounted to evaluating Healix’s bid in a way which would require an impermissible contract modification in the future.

In grounds 3 and 4 the Claimant says that Healix’s bid should have been regarded as being an abnormally low tender. The Defendant should have required Healix to explain its pricing and was in breach of regulation 69 in failing to do so (ground 3). In addition, (ground 4), the tender should have been referred to the Cabinet Office for assessment in accordance with the Bid Evaluation Guidance Note issued by the Government Commercial Function. The Claimant says that the Defendant’s failure to refer the Healix tender to the Cabinet Office was an unlawful departure from policy.

Although for current purposes the Defendant accepts that the Claimant has shown a serious issue to be tried it denies liability. In short, the Defendant’s position is that the terms of the ITT were clear and transparent and that Healix’s tender was not abnormally low. The Defendant characterizes the position as being one where the Claimant as incumbent tenderer either failed to appreciate the differences between the Contract and the existing arrangements or over-priced its tender being confident that it would obtain the Contract. In addition, at paragraph 42, the Defence denied the Claimant’s entitlement to damages on the basis that even if breaches were to be established they should be held not to have been sufficiently serious to warrant an award of damages.