HT-2025-000023 - [2025] EWHC 744 (TCC)

Millbrook has been the incumbent supplier of Community Equipment Services (“CES”) and Technology Enabled Care & Support services (“TECS”) in the local authority area for the last 7 years. CES and TECS services are provided on behalf of the local authority to enable residents (both adults and children) with eligible health, social care or educational needs to be cared for in their own homes rather than in hospital or residential care settings. The procurement of the new contract valued at approx. £46 million (excl. VAT), for an initial 5 year term plus an optional 2 year extension from 1 April 2025, was advertised by contract notice dated 23 April 2023. The open procurement was conducted by NHS South, Central and West Commissioning Support Unit on behalf of the Defendant. Bids were evaluated on the basis of pass/fail selection criteria in a Selection Questionnaire and answers to weighted scored quality and finance questions.

The Defendant first notified the Claimant on 9 October 2024 of its decision to award the new contract to NRS, and confirmed that decision in a contract award letter dated 24 October 2024. Both Millbrook and NRS had passed all the selection criteria and there was a narrow gap between their scores, with NRS’ total score reaching 75% and Millbrook’s score at 72.5%. The Claimant contends that a difference of one point in any one answer to the scored questions (at least for questions with a weighting of 10% of more) would alter the outcome of the procurement.

On 25 October 2024, the Claimant raised concerns regarding NRS’ information security and financial standing, which were included as part of the pass/fail selection criteria. Millbrook contended that NRS’ financial outlook and profitability as well as its operations and service levels had been severely affected by a cyber security incident that took place in March 2024. In response, DCC undertook to carry out due diligence and entered into successive standstill agreements with the Claimant on 22 November 2024 and 20 December 2024, whereby it agreed not to raise any limitation defence in relation to a claim issued while they remained in force. On 16 January 2025, the Defendant served notice and the standstill agreements were terminated on 23 January 2025.

On the same date, 16 January 2025, the Defendant notified the Claimant that, following completion of its due diligence exercise, there was no reason to conclude that the cyber security incident had affected NRS’ information security or financial standing and there was no reason why it should not continue to award the new contract to NRS.

The claim was issued on 23 January 2025 and seeks the following remedies:

NRS applied to become an Interested Party on 5 February 2025, which was granted by order of Waksman J dated 10 February 2025. The Defendant issued the ATL on 6 February 2025 and the Claimant sought expedition on 5 March 2025. The following witness statements have been served by the parties and have been considered by the Court: