Scottish court applies tenderer test to assessing procurement award criteria
For public authorities struggling with mounting challenges to tenders and increasingly stringent transparency requirements, a recent, common-sense ruling by the Scottish Court of Session is likely provide some relief. On 21 March 2013, the court dismissed an action to set aside the award of a framework agreement by the Common Services Agency for the Scottish Health Service (CSA) on the grounds that the award criteria lacked sufficient clarity. In doing so, the court had to consider the appropriate test to determine whether the award criteria sufficiently met the obligations for transparency and equal treatment. The court concluded that the award criteria must allow ‘all reasonably well-informed and normally diligent tenderers to interpret the criteria in the same way’.
In 2010, the CSA invited tenders for a single-supplier framework agreement to provide certain breast cancer treatment drugs (Tastuzumab) and nursing services to patients in their homes. One of the bidders, Healthcare at Home Limited (HAH), had been providing the services under an earlier contract but lost the bid to a competitor, BUPA. HAH challenged the decision on the basis that the award criteria set out in the Invitation to Tender (ITT) lacked clarity and consequently breached the obligations of equal treatment and transparency under the procurement rules. On 1 May 2012, in a first instance ruling, a commercial judge of the Outer House of the Scottish Court of Session dismissed the claims leading HAH to appeal to the Inner House of the Court of Session…
If you are registered and logged in to the site, click on the link below to read the rest of the Nabarro briefing. If not, please register or sign in with your details below.
Sign in or Register to continue reading this article
It's quick, easy and free!
It takes just 5 minutes to register. Answer a few simple questions and once completed you’ll have instant access.Register now
Why register to The Lawyer
In-depth, expert analysis into the stories behind the headlines from our leading team of journalists.
Identify the major players and business opportunities within a particular region through our series of free, special reports.
Receive your pick of The Lawyer's daily and weekly email newsletters, tailored by practice area, region and job function.
More relevant to you
To continue providing the best analysis, insight and news across the legal market we are collecting some information about who you are, what you do and where you work to improve The Lawyer and make it more relevant to you.
News from The Lawyer
Analysis from The Lawyer
Nabarro senior partner and self-confessed “IT geek” Graham Stedman is heralding a major set of investments in technology ahead of the firm’s move to 125 London Wall this year.
Clients are more willing to bring claims against professional service providers but the risk to defendants is not as dramatic as it might seem