Avoiding Service Disruption

September 7th, 2017 by James Goudie KC

The best possible service to the public, without disruption, and with minimal risk to service recipients, is a factor in favour of allowing a public contract award to be implemented. In Sysmex (UK) Ltd v Imperial College Healthcare NHS Trust [2017] EWHC 1824 (TCC) Coulson J was concerned with a procurement challenge to the Trust’s award of a managed services contract (“the MSC”) in respect of pathology services.

The commencement of proceedings triggered an automatic suspension of the Trust’s ability to enter into the contract. Coulson J lifted the suspension. There was a serious issue to be tried, but damages would be an adequate remedy.  Moreover, the balance of convenience lay in favour of lifting the suspension.  Lifting the suspension rather than continuing it involved “the least risk of injustice”.

As to the balance of convenience, Coulson J recognized that there is a public interest in compliance with the public procurement regime. However, he said:-

“64.    In my view, there is an overwhelming preponderance of evidence in favour of lifting the suspension.  That is for two main reasons: the impact of continuing the suspension on the quality of care; and the savings that would be made as a result of the new MSC. …”

“72.    Standing back from the individual matters that are disputed … it seems to me that, realistically, in a case where there is credible evidence that patient care will suffer if the suspension is not lifted, it will usually be the case that the least risk of injustice will favour the lifting of the suspension. …”

“74.    In my view, the potential effect on patient care, and the cost savings which could be made if the suspension was lifted, provide an overwhelming case on the balance of convenience for lifting the automatic suspension.”

“98.    … It is also important to avoid a situation where the authority (here an NHS Trust) has to pay twice, once for the services and again by way of damages to the unsuccessful bidder. …”

Coulson J concluded that there was an obvious public interest in the NHS providing the best possible service to the public without disruption and with minimal risk to its patients. Public interest in proper procurement does not become irrelevant, but it has to be seen in i

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