Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2012] CSOH 75
CA132/10	OPINION OF LORD HODGE in the cause HEALTHCARE AT HOME LIMITED Pursuer; against THE COMMON SERVICES AGENCY Defender: ­­­­­­­­­­­­­­­­­________________

Pursuer: Sandison QC; Maclay Murray & Spens LLP

Defender: Clark QC et S Smith; R F Macdonald

1 May 2012

[1] In this action Healthcare at Home Limited ("HAH") seeks an order under Regulation 47A(1)(b)(i) of the Public Contracts (Scotland) Regulations 2006 (SSI 2006/1) as amended ("the 2006 Regulations") to set aside a decision by the Common Services Agency ("CSA") to award a framework agreement known as "NP341/10 Trastuzumab Homecare and Near Patient Treatment Services" ("the Framework Agreement") to BUPA Home Healthcare ("BUPA").

Summary of background

[2] Before the invitation to tender, HAH had provided CSA with goods and services for about eight years under a contract or contracts which the Framework Agreement was designed to replace. On 24 February 2010 CSA invited tenders for the Framework Agreement in a process which was subject to the 2006 Regulations. On 7 April 2010 HAH submitted its tender. Scorers with appropriate professional expertise evaluated the tenders and a Clinical Advisory Panel met on 28 April 2010 in an "award of business meeting" to discuss their assessments. Thereafter CSA calculated which tenderer had obtained the highest overall score. On 13 May 2010 CSA informed HAH that its tender had been unsuccessful and that BUPA was the successful tenderer. On 20 and 21 May 2010 HAH's solicitors wrote to CSA challenging the decision and alleging that CSA had breached its duties under the 2006 Regulations. By e-mail dated 27 May 2010 CSA provided further information about its decision.

[3] HAH asserts that CSA was in breach of Regulations 4(3), 30 and 32 of the 2006 Regulations. I set out the relevant parts of the 2006 Regulations in paragraphs [4] to [9] below. In summary, HAH criticises CSA for a lack of transparency, a failure to disclose all of the relevant criteria in the invitation to tender, and a failure to give sufficiently clear reasons for its decision to enter into the Framework Agreement with BUPA.

The Statutory Framework

[4] The 2006 Regulations implement Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 ("the Public Sector Directive"). There was no suggestion that the requirements of the Directive had not been transposed into the 2006 Regulations.

[5] Regulation 4(3) of the 2006 Regulations provides:

"A contracting authority shall -

(a)   treat economic operators equally and without discrimination; and

(b)  act in a transparent and proportionate manner."

[6] Regulation 30 of the 2006 Regulations provides (so far as relevant):

(1) ...a contracting authority shall award a public contract on the basis of the offer which -

(a) is the most economically advantageous from the point of view of the contracting authority; or

(b) offers the lowest price.

(2) A contracting authority shall use criteria linked to the subject matter of the contract to determine that an offer is the most economically advantageous including quality, price, technical merit, aesthetic and functional characteristics, environment characteristics, running costs, cost effectiveness, after sales service, technical assistance, delivery date and delivery period or period of completion.

(3) Where a contracting authority intends to award a public contract on the basis of the offer which is the most economically advantageous it shall state the weighting which it gives to each of the criteria chosen in the contract notice or in the contract documents or, in the case of a competitive dialogue procedure, in the descriptive document.

...

(5) Where, in the opinion of the contracting authority, it is not possible to provide weightings for the criteria referred to in paragraph (3) on objective grounds, the contracting authority shall indicate the criteria in descending order of importance in the contract notice or contract documents or, in the case of a competitive dialogue procedure, in the descriptive document.

[7] Regulation 32, which governs the information which the contracting authority has to provide about its decision to award a contract to a tenderer or make it a party to a framework agreement, provides so far as relevant:

(1) Subject to paragraphs (4) and (10), a contracting authority shall by notice in writing as soon as possible after the decision has been made, inform all tenderers and all candidates concerned (if any) of its decision to -

(a) award the contract; or

(b) conclude the framework agreement.

(2) The notice referred to in paragraph (1) shall include -

(a) the criteria for the award of the contract;

(b) where practicable, the score obtained by -

(i) the economic operator which is to receive the notice; and

(ii) the economic operator -

(aa) to be awarded the contract; or

(bb) to become a party to the framework agreement

(c) the name of the economic operator -

(i) to be awarded the contract; or

(ii) to become a party to the framework agreement;

(d) in the case of an unsuccessful economic operator, a summary of the reasons why the economic operator was unsuccessful;

(e) in the case of an unsuccessful tenderer, the characteristics and relative advantages of the successful tender; and

...

(3) A contracting authority shall allow a period of at least the relevant standstill period to elapse between the date of despatch of the notice referred to in paragraph (1) and the date on which that contracting authority enters into the contract or concludes the framework agreement.

...

(6) Subject to paragraph (10), a contracting authority shall within 15 days of the date on which it receives a request in writing from any economic operator which was unsuccessful -

(a) inform that economic operator of the reasons why it was unsuccessful; and

(b) in the case of an unsuccessful tenderer, other than a tenderer which has been informed by notice under paragraph (1), inform that economic operator of the characteristics and relative advantages of the successful tender and the name of -

.....

(ii) the parties to the framework agreement;

...

(12) A contracting authority shall keep appropriate information to document the progress of contract award procedures conducted by electronic means.

[8] Regulation 47, which enables an economic operator to apply to the court to enforce obligations under the 2006 Regulations, provides:

(1) The obligation on -

(a) a contracting authority to comply with the provisions of these Regulations...

is a duty owed to an economic operator.

...

(5) A breach of the duty owed under paragraph (1) or (2) is actionable by any economic operator which, in consequence of the breach, suffers, or risks suffering, loss or damage and such proceedings may be brought in either the Sheriff Court or the Court of Session.

(6) Proceedings under this Part shall not be brought unless -

(a) the economic operator bringing the proceedings has informed the contracting authority or concessionaire, as the case may be, of -

(i) the breach or apprehended breach of the duty owed to it in accordance with paragraph (1) or (2); and

(ii) its intention to bring proceedings under this Part in respect of that breach or apprehended breach; and

(b) the proceedings are brought in accordance with paragraph (7).

(7) For the purposes of paragraph (6)(b), proceedings shall be brought -

...

(b) in any other case, promptly and in any event within 3 months from the date when grounds for the bringing of the proceedings first arose unless the Court considers that there is good reason for extending the period within which proceedings may be brought.

[9] Regulation 47A provides:

(1) Subject to paragraphs (3) and (7), but otherwise without prejudice to any other powers of the Court, in proceedings brought under this Part the Court -

...

(b) if satisfied that a decision or action taken by a contracting authority or concessionaire was in breach of the duty owed under Regulation 47(1) or (2), may -

(i) order the setting aside of that decision or action;

...

The case law applicable to the 2006 Regulations

[10] There is, as is well-known, extensive case law of the Court of Justice of the European Communities ("ECJ") on the Public Sector Directive and the earlier directives relating to public procurement procedures. Absent legislative innovation which pursues different goals, that case law is relevant to the interpretation of the 2006 Regulations (a) because the court must seek to achieve the result pursued by the Directive and (b) as a provision of EU law must be interpreted in the context of EU law as a whole (Marleasing SA v Commercial Internacional de Alimentacion SA [1990] ECR I-4135, at para 8; C.I.L.F.I.T. v Ministry of Health [1982] ECR 3415, at para 20). In my view the principal features of that case law, so far as relevant to this case, can be summarised in the following propositions.

[11] First, the principle of equal treatment, which lies at the heart of the public procurement directives, requires that the tenderers must be in a position of equality both when they formulate their tenders and also when the contracting authority assesses those tenders (SIAC Construction Ltd v County Council of Mayo [2001] ECR I-7725, at para 34; Concordia Bus Finland Oy Ab v Helsingin Kaupunki [2002] ECR I-7213, at para 81; and ATI EAC Srl v ACTV Venezia SpA [2005] ECR I-10109, at para 22).

[12] Secondly, the contracting authority must apply the principle of non-discrimination, which is one of the fundamental principles of EU law, when it chooses the criteria on which it proposes to base the award of a contract (Concordia Bus (above) at para 63). This principle also obliges the contracting authority to apply the award criteria objectively and uniformly to all tenderers (SIAC (above) at para 44).

[13] Thirdly, the principle of equal treatment implies an obligation of transparency so as to afford equality of opportunity to potential tenderers (Universale-Bau AG v Entsorgungsbetriebe Simmering GmbH [2002] ECR I-11617, at paras 91 and 93; SIAC (above) at para 41).

[14] It follows from the obligation of transparency that, fourthly, the contracting authority must formulate the award criteria in the contract documents in such a way that potential tenderers are in a position to be aware, when preparing their tenders, of the existence and scope (or relative importance) of the elements which the contracting authority will take into account in identifying the most economically advantageous offer (Concordia Bus (above) at para 62; ATI (above) at paras 23 & 24; and Emm. G. Lianakis AE v Dimos Alexandroupolis [2008] ECR I-251, at paras 36 & 37). The ECJ has also stated this consideration in a different manner, namely that the award criteria must be formulated in such a way as to allow all reasonably well-informed and normally diligent tenderers to interpret them in the same way (SIAC (above) at para 42). In Evropaïki Dynamiki v European Maritime Safety Agency [2010] EUECJ T- 70/05, at para 130, the ECJ stated that the aim of the provisions was to allow such tenderers to achieve that uniformity in interpretation.

[15] Fifthly, this obligation to disclose the elements which the contracting authority will take into account means (a) that in its consideration of the tenders the contracting authority cannot alter the criteria for the award which it has disclosed, (b) that its award decision cannot include elements which, if they had been known at the time the tenders were prepared, could have affected that preparation, and (c) that it must not adopt a method of assessment on the basis of matters which are likely to give rise to discrimination against one of the tenderers (ATI (above) at paras 26 - 32).

[16] Sixthly, and consistently with the preceding proposition, the obligation of transparency also means that the contracting authority must interpret the award criteria in the same way throughout the procedure (SIAC (above) at para 43).

[17] Turning to the rules which govern the award of a contract to the person making the most economically advantageous offer (Regulation 30(1)(a) and (2) of the 2006 Regulations) a clear distinction is drawn between the criteria for assessing the suitability of a tenderer (the "qualitative selection criteria") on the one hand and the criteria for evaluating which tender is most economically advantageous (the "award criteria"). Thus, seventhly, criteria which evaluate the tenderer's suitability to perform the contract in question, such as its economic and financial standing or its technical ability, are qualitative selection criteria and are separate from the award criteria which relate to the subject matter of the proposed contract, such as the quality and reliability of the service which the tenderer offers to provide (Gebroeders Beentjes BV v State of the Netherlands [1988] ECR 4635, the Court at paras 16-19 and the Advocate General at paras 35 & 36; SIAC (above) at paras 36 and 39; Concordia Bus (above) at para 59; and Lianakis (above) at paras 26-32).

[18] In the light of these propositions it is unsurprising that the ECJ has also held, eighthly, that an award criterion which gives the contracting authority an unrestricted freedom of choice as regards the award of the contract to a tenderer is unlawful (Beentjes (above) at para 26; SIAC (above) at para 37; Concordia Bus (above) at para 61; and ATI (above) at para 21).

[19] Two further points arise. First, because the principles of equality, transparency and non-discrimination are foundational in this European regulatory regime, the contracting authority has no margin of appreciation as to the extent to which it will, or will not, comply its obligations (Lion Apparel Systems Ltd v Firebuy Ltd [2007] EWHC 2179 (Ch) Morgan J at para 36).

[20] Secondly, the contracting authority has a margin of appreciation in relation to matters of judgment or assessment and the court will intervene in those areas only where it has clearly committed an error (Lion Apparel (above) at para 37 and Aquatron Marine v Strathclyde Fire Board [2007] CSOH 185, Lord Carloway at para 82). This is consistent with the statement by the ECJ that the authority has a broad discretion and that review by the courts must be limited to:

"checking that the rules governing the procedure and the stating of reasons have been complied with; that the facts are correct; and that there has been no manifest error of assessment or misuse of powers."

(Antwerpse Bouwwerken NV v European Commission (Case T-195/08) 10 December 2009, at para 52).

[21] This case raises issues particularly in relation to the fourth and fifth propositions (above) as to the extent of the contracting authority's obligation to give details of its proposed methods of assessment of the tenders. While the ECJ judgments set out the principles to be applied which I have summarised above, I have also looked to domestic case law for guidance on this issue, which I discuss in the next section (paras [23] to [28]) before turning to the facts of the case and the particular legal challenges which Mr Sandison QC has made.

[22] Before I do so it is necessary to examine the ECJ's guidance on the duty to give reasons for the award decision as HAH mounts a challenge under Regulation 32 of the 2006 Regulations. In Strabag Benelux NV v Council of the European Union [2003] ECR II-135 (at paras 54-58) the ECJ set out guidance on the obligations of the contracting authority when an unsuccessful tenderer requests in writing for the authority to inform it (a) why it was unsuccessful and (b) of the characteristics and relative advantages of the successful tender. The authority must disclose its reasoning in a clear and unequivocal manner in order to (i) make the unsuccessful tenderer aware of the reasons for the decision and thereby enable it to defend its rights and (ii) enable the court to exercise its supervisory jurisdiction. The contracting authority can correspond with the unsuccessful tenderer and, in so doing, expand on its initial statement of reasons. Its performance of the duty to state reasons will therefore be assessed in the light of the information which is available to the applicant at the time when the legal proceedings are brought. But the authority is not permitted to substitute an entirely new statement of reasons for its original statement of reasons. It is not a ground of objection that the reasons are short (Alstom Transport v Eurostar International Ltd [2011] EWHC 1828 (Ch). Mann J at para 72). The contracting authority is not under an obligation to undertake a detailed comparative analysis of the successful tender and the unsuccessful tender or to produce a copy of the evaluation report (Evropaïki Dynamiki v Proigmena Systimata Tilepikoinonion (Case C-561/10 P) 20 September 2011).

Discussion of a legal issue: the fourth and fifth propositions

[23] Counsel did not take issue with the principles to be applied in assessing the performance of the contracting authority. Where they differed was in the rigour of the obligation on the contracting authority in the fourth proposition (paragraph [14] above) and whether the appropriate test also put an onus on the prospective tenderer to enquire if it was not clear about the elements which the authority proposed to take into account when assessing the tenders to identify which was most economically advantageous.

[24] Mr Sandison submitted that the standard of clarity required of the contracting authority was that it must exclude a real possibility that two reasonably well informed tenderers could interpret the contracting authority's invitation to tender differently without either being unreasonable in reaching its view. He submitted that this test was expressed most clearly in the judgment of McCloskey J in Federal Security Services Ltd v The Northern Ireland Court Service [2009] NIQB 15 (at para 53) where he stated:

"I consider that the hypothetical reasonably well-informed and normally diligent tenderer could, understandably and plausibly, have construed and understood the instructions to tenderers in the various ways outlined above. There was sufficient uncertainty and ambiguity in key passages in the instructions to give rise to this real possibility. There was scope for differing interpretations and viewpoints, none of which could be condemned as unreasonable, unarguable or illegitimate. ..."

[25] Mr Clark QC for CSA submitted that the test which Mr Sandison proposed was too high and that there were details in the assessment of tenders which the contracting authority did not have to spell out in order to meet its obligation of disclosure in terms of the fifth proposition (paragraph [15] above). The adequacy of the contracting authority's disclosure was measured by the standard of the reasonably well-informed and normally diligent tenderer. The court should have regard to what was reasonably foreseeable to that hypothetical tenderer in assessing the adequacy of disclosure. He founded on the judgment of Ramsay J in Mears Ltd v Leeds City Council [2011] EWHC 1031 (TCC) in which, after considering judgments of the ECJ and the High Court, he summarised (at para 122) the principles which he derived from those decisions. The fifth of those principles was in the following terms:

"There is a level of assessment below the criteria, sub-criteria and weightings which the contracting authority may use in evaluating the award criteria which it does not have to disclose for a number of reasons. First, because it does not, on a reasonable view, introduce different or new criteria, sub-criteria or weightings. This aspect must be considered in the light of what would be reasonably foreseeable to a reasonably well-informed and normally diligent tenderer. Secondly, because it could not have affected the tenders. Thirdly, because it is not a matter aimed at identifying the most economically advantageous tender but instead is linked to the evaluation of the tenderers' ability to perform the contract in question. In each case it will be a matter of fact whether the matters alleged come, on balance, within any of those categories."

Mr Clark submitted that the first of those three reasons was an apposite test of the standard of clarity which the law required.

[26] I am not persuaded that it is realistic to require a contracting authority, on pain of annulment of its decision, to frame its invitation to tender in such detail that two reasonable people could not reach different views on its interpretation without acting unreasonably. See J. Varney & Sons Waste Management Ltd v Hertfordshire County Council [2011] EWCA Civ 708, Stanley Burnton LJ at para 34. While this standard may possibly be achieved in very simple and straightforward contracts, it is one which is impracticable in complex agreements which are not uncommon in the field of public procurement. It is not in the nature of language for that degree of certainty to be achieved in such agreements. Further, in some circumstances, the obligation on the authority to give very precise and highly detailed descriptions of its requirements would both be very burdensome and also prevent tenderers from using their own initiative and experience to offer innovative approaches to meeting the authority's requirements.

[27] It is the task of the contracting authority to disclose to potential tenderers the existence and relative importance (or weighting) of the criteria which it will take into account in identifying the most economically advantageous tender. But that does not mean that a tenderer is not expected to use reasonable foresight in its analysis of what the stated criteria or sub-criteria entail. Indeed that appears to me to be implicit in the ECJ's use of the hypothetical standard of " all reasonably well-informed and normally diligent tenderers". I do not see a difference in substance between that objective hypothesis and the hypothetical standard of "the reasonably well-informed and normally diligent tenderer". I therefore agree with Ramsay J that in assessing whether there has been adequate disclosure of a criterion or sub-criterion the court can ask whether the matter, which is alleged not to have been disclosed, would have been reasonably foreseeable by a reasonably well-informed and normally diligent tenderer as encompassed by that criterion or sub-criterion.

[28] In stating this view I am not suggesting that Federal Security Services Ltd was incorrectly decided. I think that the passage on which Mr Sandison founded and which I quoted in paragraph [24] above needs to be understood in its context. That case concerned a proposed contract for the provision of security services in courts in Northern Ireland. The contract award criteria did not make it clear whether the possession of a valid security licence at the time of tendering was mandatory and it was not sufficient to take steps to secure that licence at a future date. This was a fundamental issue in the tendering process, which of itself could have led to the disqualification of tenderers. In my view McCloskey J's formulation makes good sense in the context of the specific issue in the particular contract. I do not think that it can be applied out of context as a general test of the standard of disclosure.

The Tendering Process
(i) The Invitation to Tender
[29] In its Invitation to Tender ("ITT") CSA invited tenders for the award of a single-supplier Framework Agreement with an extendable two-year term, for a compounding, dispensing and delivery service of Trastuzumab (also known as Herceptin) and a nursing administration and support service. The service involved the delivery of the drug to the homes of patients or other agreed delivery points in Scotland on behalf of various NHS entities ("the Participating Authorities"). After an initial two cycles of treatment in hospital, suitable and consenting patients are treated with Trastuzumab at home on a three-weekly basis for a further sixteen cycles as an adjuvant treatment or as a treatment of metastatic breast cancer.

[30] The ITT stated that CSA made no commitment as to the volume of goods and services that the Participating Authorities might purchase but gave an approximate statement of the number of NHS patients who were receiving the service as at December 2009 and stated that:

"there may be a significant increase in the overall NHS Scotland requirement over the period of the contract but this is not guaranteed."

Tenderers were given notice that other NHS authorities might become Participating Authorities and that the volume of the service might increase.

[31] The ITT (at paras 3.1 and 3.2) described the tender evaluation as follows:

"3.1 EVALUATION PANEL

Provided Potential Framework Participants have answered all mandatory questions of this ITT and have not been deselected as a result of their response, all Tenders submitted will be evaluated by a tender evaluation panel comprising representatives from National Procurement, (a division of the Authority), and representatives from the Clinical Advisory Panel (which comprises officers from various Participating Authorities across NHS Scotland).

3.2 AWARD CRITERIA

The most economically advantageous Tender will be determined by evaluating all Tenders against the award criteria and weightings set out below.

QUALITY OF SERVICE - 35%

RISK AND DELIVERABILITY - 25%

PRICE - 20%

SERVICE DELIVERY (Nursing Support) - 10%

PATIENT SUPPORT - 5%

SERVICE DELIVERY (Courier/Own Transport) - 5%

The award sub-criteria and relevant weightings of each sub-criterion are as detailed in Section 3.3 of this ITT."

[32] Section 3.3 of the ITT set out the basis on which tenders would be scored. Section 3.3(1) set out how price was to be scored. No issue arises in relation to that. Section 3.3(2) then set out the scoring of certain questions (including question 8.2.1 which is in controversy) on the basis of four possible scores, namely zero - unacceptable, 2 - weak, 4 - fair, and 5 - good. For each score it explained how the assessment would be determined. In relation to the maximum score of five it stated:

"5 Good as determined by:-

·       A response which meets all aspects of the NHS Requirement; and

·       A response which is comprehensive, unambiguous and demonstrates a good understanding of the NHS Requirement, and

·       Adequate and complete evidence of ability to meet the NHS Requirement has been provided in the response where requested in the NHS Requirement."

[33] Section 3.3(3) set out the scoring of certain questions (including questions 8.3.1 and 8.3.2 which are controversial) on the basis of five possible scores, namely four scores with the same explanations as in section 3.3(2) and an additional score of six for exceeding the NHS Requirement. This maximum score was explained thus:

"6 Exceeds NHS Requirement as determined by the following:-

·       A response which materially exceeds the NHS Requirement in a way which is relevant to the NHS Requirement. This may be achieved by providing a creative or innovative response to the NHS Requirement or one where additional "added value" areas have been identified; and

·       A response which is comprehensive, unambiguous and demonstrates a good understanding of the NHS Requirement; and

·       Adequate and complete evidence of ability to so exceed the NHS Requirement has been provided where requested in the NHS Requirement."

[34] The ITT attached to section 3.3 a spreadsheet document entitled "NP341_10 Trastuzumab_Scoring_Overview_(non-price).xls" which illustrated the mechanism that was to be used for the scoring evaluation of the non-price sections. It disclosed the weight per criterion, the weight per sub-criterion, and the scoring methodology which set out what percentage score would be attributed to each sub-criterion if it were assessed to be weak, fair, good or exceeding the NHS Requirement. HAH did not challenge the adequacy of the disclosure of weightings in the ITT.

[35] Section 4 of the ITT set out instructions to the tenderers on completion and submission of their tenders. Section 4.1 gave the following instructions on the completion of the tender documents:

"4.1 COMPLETION OF TENDER DOCUMENTS

Potential Framework Participants should ensure that they have fully read and understood all the sections included in the online system.

All Potential Framework Participants must consider the requirements of this ITT and the e-tender system and ensure that their Tenders comply with the same. Potential Framework Participants must answer all questions posed in this ITT and provide any information required. Failure to do so may result in a Tender being deselected as it is not complete. In particular, Potential Framework Participants MUST provide any information required where appropriate in the format prescribed in this ITT and the e-tender system. This includes the completion of the price schedules contained in this ITT and the e-tender system. Where Potential Framework Participants are asked to enter information into a spreadsheet they must ensure that they follow the relevant instructions. If in doubt, please refer to the section entitled Process for Questions/Clarifications.

Where information is required the e-tender system has the functionality to upload attachments.

Potential Framework Participants are responsible for ensuring that they have completed their Tender fully and accurately and that prices quoted are arithmetically correct for the units stated. Once the submission deadline has expired, the online system will not allow Potential Framework Participants to access their Tender or make any amendments thereto. In the event that any Potential Framework Participant considers that its Tender contains any manifest error, Potential Framework Participants should advise the Authority in writing as quickly as possible to the contact details originally set out in the OJEU notice. It shall be at the discretion of the Authority whether or not to accept any corrections provided always that no corrections will be accepted by the Authority once evaluation of tenders has been completed."

[36] Section 4.3 gave these instructions on the submission of tenders:

"4.3 SUBMISSION OF TENDERS

Tenders must be submitted on the basis required in the e-tender system used by the Authority.

Full details or specifications for the Goods and Services in respect of which the Potential Framework Participant submits its Tender should be provided with the Tender together with any brochures/product literature, utilising the function of upload, as attachments and inserting any relevant URL links for websites where applicable. Please note that only attachments that contain information requested in the ITT will be considered. Please do not send surplus information or brochures. Attachments must be attached everywhere they are relevant. Do not reference attachments in other sections as they may not be considered.

The Tender Pricing Schedules and the format as set in the e-tender system should not be altered by any Potential Framework Participant. Potential Framework Participants should use the active columns in the worksheets in the Tender Pricing Schedule as directed.

All Potential Framework Participants should note that the Authority use Microsoft (MS) Office 2003 as standard and DOES NOT recognise any newer versions of this software. All MS Office files must be submitted in a compatible format.

Potential Framework Participants must confirm that they are able to participate in the e-procurement aspects of the Framework Agreement and that they are able to meet the mandatory requirements as set out within this ITT (and the subsequent attachments). All sections must be completed and submitted in full in order for Tender submission to be complete. The e-tender system will not allow Potential Framework Participants to finally submit Tenders when there are incomplete sections.

Ensuring a Tender is complete shall remain the responsibility of each Potential Framework Participant."

[37] Section 4.4, to which section 4.1 referred in the end of the second paragraph, gave guidance on the procedure to be followed where a tenderer had questions or wished to seek clarification on the completion of its tender in accordance with the instructions in the ITT. It had the heading "Process for Questions/Clarification" and stated:

"Potential Framework Participants should endeavour to make any requests for clarification or assistance on tender completion a minimum of five (5) days before the deadline for submission of Tender set out below. During the five (5) day period following the said deadline, the Authority will use all reasonable endeavours to answer queries or questions where information requested can reasonably be given prior to said deadline. All questions regarding this ITT should be directed through the Bulletin Board.

See attachment for instructions on use of Bulletin Board.

The Authority may at its discretion communicate any questions and/or requests for information together with the Authority's response to all Potential Framework Participants.

Attachments	Date	Size
Bulletin Board Guidance Doc 140509.doc	22 February 2010	163840Bytes"

[38] As was clear from section 4.3, the tenderers were instructed to submit their tenders electronically. The e-tender system gave the tenderers Microsoft Excel boxes into which they could type their submissions. HAH has pointed out that the size of the boxes limited the amount of text which it could include. I discuss this in paragraphs [104] and [105] below.

[39] The ITT at section 4.6 stated that tender returns were to be made on 7 April 2010, that the Framework Agreement would be awarded in May or June 2010 and that the contract would commence in July 2010.

[40] Section 7 of the ITT set out the conditions of participation, which were the qualitative selection criteria to which I referred in paragraph [17] above. They included corporate details and contact numbers, details relating to criminal convictions or insolvency which Regulation 23 of the 2006 Regulations treats as criteria for rejection, details of turnover to demonstrate economic and financial capacity, and in section 7.5 details of technical capacity.

[41] Among the topics included as conditions for participation under technical capacity in section 7.5 was the existence of a quality management system. Section 7.5.5 provided:

"7.5.5 Quality Management System Weight (0%)

The successful Framework Participant and any sub-contractor(s) must have an efficient and robust Quality Management System in place that allows management of all services under the Framework Agreement and ensures that procedures from order handling through to administration of medicine to the patient are carried out in an efficient and responsible manner.

The successful Framework Participant and any sub-contract(s) must possess valid certification of BS EN ISO9001 or equivalent.

Please upload and attach a copy of certification and where a written Quality Management System is in place also upload and attach a copy of this to this section of the ITT.

Response Type: Free Text"

[42] Section 8 of the ITT set out the award criteria and informed tenderers of the weight which CSA would attach to the various criteria as follows:

"8. COMMODITY SPECIFIC ITT QUESTIONS - 100% Weight (100%)

Potential Framework Participants must ensure that they answer fully the questions contained within this Section.

Award Criteria are as follows:

QUALITY OF SERVICE - 35%

RISK AND DELIVERABILITY - 25%

PRICE - 20%

SERVICE DELIVERY (Nursing Support) - 10%

SERVICE DELIVERY (Courier/Own Transport) - 5%

PATIENT SUPPORT - 5%

8.1 CONTRACT SPECIFICATIONS - 0% Weight (0%)

Please find attached to this Section 8.1 the four (4) documents, which together constitute the Specification for the Goods and Services to be provided in terms of the Framework Agreement.

Please download and confirm your company's review and complete and unconditional agreement to and understanding and acceptance of the Specification in its entirety by having each of the documents attached to this Section 8.1 signed and dated by a director or other duly authorised signatory where indicated at the end of each such document and uploading the documents back in to the system." ...

(ii) The sections of the ITT which HAH challenges

(a) Quality of Service: the Dispensing Process

[43] Under the heading "Quality of Service", section 8.2 set out six sub-criteria which tenderers were to address and attributed weightings to each of those sub-criteria as percentages of the weighting attributed to the Quality of Service criterion. HAH sought to challenge only one of those sub-criteria, namely section 8.2.1, which related to the dispensing process and which was in the following terms:

"8.2.1 Dispensing Process Weight (25%)

It is essential that the compounding and dispensing process for Herceptin is controlled and meets all requirements detailed in the Specification.

Please detail the process that would be used for compounding and dispensing of the Herceptin. Areas to cover in your response should include but are not limited to manufacturing facilities, clinical checks, compounding checks, communication of interventions back to prescribing centres, dispensing checks and turnaround times for changes.

Responses will be evaluated based on the scoring mechanism detailed in Section 3.3(2) of this ITT. ...

Response Type: Free Text"

(b) Risk and Deliverability: Contract Implementation and Change in business Volumes

[44] Under the heading "Risk and Deliverability" the ITT set out seven sub-criteria which tenderers were to address and again stated the weightings attributed to each sub-criterion as percentages of the criterion. HAH sought to challenge two sections within the Risk and Deliverability criterion. The first was section 8.3.1 which provided:

"8.3.1 Contact Implementation/Change in Business Volumes Weight (28%)

As detailed within Section 6 - Transfer of Patients into the Framework Participant's Service of the Specification, it is essential that there is a smooth implementation process for this contract to maintain standards of patient care and that any increase in patient numbers is managed efficiently and effectively.

The intention for this contract is that any new patients from any Participating Authority will immediately as from the commencement date of the Framework Agreement (currently scheduled to be 1 July 2010) be provided with all required Goods and Services by or on behalf of the successful Framework Participant with (if a new Herceptin homecare supplier is appointed as the successful Framework Participant) all current patients being transferred into the care of the successful Framework Participant within a six (6) month period, such period starting on the said commencement date.

With this intention in mind please detail how your company would implement this contract and manage a change in business volumes on an ongoing basis across NHS Scotland.

Areas which should be covered in the response include but are not limited to: access to stock, initial and ongoing training resources, available delivery resources, recruitment of additional staff, timescales for full implementation, ability to increase delivery capacity and range as well as compounding capacity.

A response is expected from all Potential Framework Participants and should include an exit strategy for the end of the contract.

Responses will be evaluated based on the scoring mechanism detailed in Section 3.3(3) of this ITT.

Response Type: Free Text"

(c) Risk and Deliverability: Contingency Proposal

[45] The second challenged sub-criterion within the "Risk and Deliverability" heading was section 8.3.2 which stated:

"8.3.2 Contingency Proposal Weight (25%)

It is essential that the successful Framework Participant complies with all of its obligations and meets all of its liabilities in terms of the Framework Agreement to ensure no risk to patients.

What contingency proposals would your company have to ensure that it will comply with all of its obligations and meets all of its liabilities in terms of the Framework Agreement in the event of unforeseen circumstances?

Areas which should be covered in your response include but are not limited to:-

A major incident alert from a Participating Authority that may necessitate a very quick response and additional support for a particular incident; and/or

An internal (e.g. staffing issue) or external (e.g. utilities failure) problem within or affecting the successful Framework Participant in the continued delivery of contracted Goods and/or Services; and/or

A major incident alert, including in particular a flu pandemic situation.

Please also include details of the following contingency measures:-

Scale and location of production facilities;

Alternative arrangements for securing supply and delivery of all Goods and Services;

Contingency for short fall in supplies of Goods and/or Services or an incorrect delivery.

The robustness of the contingency proposal will be assessed and awarded a score using the scoring mechanism detailed in Section 3.3(3) of this ITT.

Response Type: Free Text"

(ii) The scoring of the tenders and the proposed award of the Framework Agreement

[46] CSA engaged people with appropriate professional expertise in pharmacology, nursing, oncology and project management to evaluate the tenders. CSA asked each to identify the sections which he or she could competently mark and issued each scorer with scoring booklets. For each scorer the process of scoring five tenders was time-consuming and took many hours. Each scorer submitted his or her scores and comments in a collaboration record to CSA. Ms Jennifer Wotherspoon of CSA prepared a scoring spreadsheet and Mr Andrew Stewart of CSA checked the spreadsheet for any obvious errors. Thereafter Ms Colette Whigham and Mr Stewart of CSA arranged a meeting of the Clinical Advisory Panel on 28 April 2010 to review the responses, discuss the outcome of the scoring, and allow scorers to make any adjustments to their scores in the light of its discussions. Any obvious errors, such as those which arose from the use of an incorrect scoring booklet, were corrected. Mr Stewart thereafter discussed the decisions reached at the meeting with Ms Brechin and Mr Parker, the scorers who were not able to attend the meeting. Once final scores had been ascertained on the non-price award criteria, CSA added data about the prices which had been tendered to the calculation in order finally to ascertain which tender was most economically advantageous.

[47] By letter dated 13 May 2010 CSA informed HAH that its tender had been unsuccessful and that BUPA was the successful tenderer. CSA provided with the letter two summary tables setting out the scores which HAH and BUPA were awarded on each of the section 8 criteria and showing a breakdown of those scores by sub-criterion. These tables showed that BUPA had been awarded a total score of 90.48 and that HAH was close behind with a total score of 89.06. In the three sub-criteria which HAH subsequently challenged, BUPA obtained a higher score as follows:

Subcriterion	HAH score	BUPA score
8.2.1 Dispensing process	7.00	8.00
8.3.1 Contract Implementation etc	5.44	6.42
8.3.2 Contingency Proposal	3.72	5.38

(iii) The Statement of Reasons and further explanations

[48] CSA enclosed with its letter of 13 May 2010 a summary of reasons why HAH was unsuccessful. Ms Whigham and Mr Stewart of CSA prepared the letter from their analysis of the comments which scorers had provided in their scoring submissions. So far as relevant to the current challenge it stated:

"8.2.1 - Dispensing Process

The winning supplier included detail of how interventions would be communicated back to the prescribing centre through all stages of the dispensing process, from receipt of the prescription to compounding and dispensing and the actions taken prior to an intervention being made. Healthcare at Home Ltd gave an indication that clinical interventions would be communicated back to prescribing centres but did not provide detail on how this would be communicated and agreed with the Participating Authority.

The response from the winning supplier stated that clinical checks would include checks on blood and scan results in accordance with local Participating Authority protocols. Healthcare at Home Ltd did not make any reference to ensuring compliance with local Participating Authority protocols.

Section 8.3 RISK AND DELIVERABILITY

8.3.1 - Contract Implementation/Change in Business Volumes

The winning supplier included detail of predicted nursing staff numbers required to support varying degrees of activity. Information provided included trigger points for recruitment, how the staff numbers had been calculated alongside an implementation timeline and how it will be met. Healthcare at Home indicated that an increase in business volumes could be met within company resources but gave no evidence on how this would be structured and managed.

The winning supplier included an exit strategy that detailed how the process of transferring patients to an alternative supplier would be managed. Healthcare at Home Ltd supplied a basic exit strategy with little detail on timescales and how this would be managed.

8.3.2 - Contingency Proposal

The winning supplier detailed in their response that they could supply compounded Trastuzumab at all points during their contingency plan. Healthcare at Home indicated that if their first line contingency for the supply of compounded Trastuzumab was insufficient then a vial service would be provided in order to maintain supply."

[49] By letter dated 20 May 2010 HAH's solicitors, Maclay Murray & Spens ("MMS"), wrote to CSA with their observations on the statement of reasons. In relation to the comment on checks on blood and scan results in sub-criterion 8.2.1 MMS suggested that CSA had failed to take account of what HAH had said in section 8.3.5 and its attachment to that section of a document, "Herceptin Protocol" which detailed HAH's policy on checking scans. In relation to CSA's comments on sub-criterion 8.3.1 MMS suggested that CSA had marked down HAH for not providing predicted staff numbers and suggested that that was not a relevant consideration for that sub-criterion. Further, HAH as the incumbent supplier had the required staff and infrastructure already in place and could absorb increases in demand through its bank of drivers. In relation to sub-criterion 8.3.2 MMS suggested that HAH's submission had been misunderstood because it had disclosed that it had a back up arrangement with an alternative supplier to provide compounded Herceptin if HAH's compounding unit had a problem and that in any event it was not practicable for BUPA or any other supplier to supply compounded Herceptin at all points.

[50] On the following day MMS again wrote to CSA intimating HAH's intention to initiate legal proceedings for CSA's breaches of the EU procurement rules in the 2006 Regulations in relation to transparency, equal treatment and the giving of adequate reasons.

[51] Mr Martin Dowds, a senior solicitor of the NHS Central Legal Office sent a holding reply by e-mail dated 24 May 2010 and, having obtained instructions from officials of CSA, sent an e-mail to MMS dated 27 May 2010 in which he gave the following information:

"8.2.1

Your clients' response to this section of the ITT was not very detailed with regard to communication of results of interventions back to the prescribing centre. The clinical error reporting system, and communication elements were considered to be weak and it was thought that there was a lack of evidence in key areas. With regard to incidents, the cycle of awareness of and reflection on these to minimise repetition is important. This was not considered to be addressed adequately.

Whilst turnaround times were provided, there was no information given regarding what happens when changes are made and the effect this may have on timings.

The winning supplier demonstrated a more comprehensive approach to reporting and reflecting upon interventions. Clinical checks were well defined and the reporting of interventions to participating authorities and communication on a case by case basis was detailed. Reference to the participating authority protocols was made in National Procurement's letter to your clients of 13 May 2010. This reference was to illustrate the comprehensive response given by the winning supplier. We can confirm that the winning supplier's score did not include any element attributable to the ability or willingness to carry out the said check in line with any local Participating Authority protocols. We can also confirm that your client's score would not have been any higher if its response had included any statement that it would be willing and/or able to carry out the said check in line with any local Participating Authority protocols.

The winning supplier clearly defined a replacement process for product and the turnaround time for changes was clear. Audit requirements were also highlighted providing additional quality assurance.

Your letter of 20 May 2010 highlights the response given by your clients to Section 8.3.5 of the ITT. There is no dispute that your client's response to that section was of high quality and you will note that they received the highest score possible for that section. However, the response to each section is evaluated separately and your clients' response to Section 8.3.1 [sic] was not considered to have the depth and quality of that of the winning supplier.

8.3.1

This section of the ITT was designed to interrogate transfer and implementation issues. One element of this concerns staffing. However I can provide more detailed analysis of the overall complexion of the responses. An implementation plan would be necessary in order to deliver the full requirements detailed in the ITT. The plan proposed by your clients was not considered to be comprehensive and was not detailed regarding the ability to scale up compounding capacity. The transfer of existing patients from an existing vial to compounded process is a significant change which was not detailed in the response.

Whilst training was included, insufficient detail on training packages was provided. The exit strategy was considered to lack depth and detail, and did not include timescales.

By contrast, the winning supplier provided a comprehensive and detailed response which outlined a robust implementation plan and exit strategy. A three phased implementation plan was provided which was clear and provided detail and evidence relative to ongoing and initial training, access to stock and recruitment of staff (including details of how the numbers of these had been calculated and how they would be managed). The response also referenced timescales and how they would be met, ability to increase delivery capacity, delivery range and compounding capacity. Additional information was also provided around risk management. The response focused in detail upon local facilities and staffing levels.

8.3.2

National Procurement does not consider that it has misunderstood your clients' submission. Whilst your clients provided a lot of information in response to this section of the ITT, National Procurement considered that the response lacked focus and clear evidence. Details of a back-up production facility were provided, but the scale of this operation was unclear and the capacity for production was a concern. The plan for local contingency was considered to be vague and lacking in detail. It was unclear what would happen where an incorrect delivery was made and although vials were proposed, these are outwith the scope of the Framework. No details of timescales for remedying incorrect delivery were provided. The business continuity plan template did not provide details of the level of contingency available and contained very little detail about how services to customers would be maintained.

By contrast, the winning supplier addressed multiple tiers of contingency in their response. The proposal included detailed contingency relating to compounding, addressing scale and locations. A detailed pandemic flu plan was submitted. Details of staff shortages were included and details of local action were also provided. Stock shortfall incidents were addressed. An incident reporting plan was also provided which included actions taken after investigation of any complaint or incident and linking it to changes in practice that may result following investigation. A detailed nursing contingency plan was specifically referenced.

National Procurement have confirmed that the evaluation was conducted properly and in accordance with the ITT. The award criteria as set out in the ITT were uniformly applied to all submissions."

[52] The parties and their legal advisers met on 8 June 2010 to discuss HAH's concerns but were not able to resolve their differences. Shortly thereafter HAH raised proceedings which were then transferred to the commercial roll.

The proof and the witnesses

[53] In the proof I heard evidence from the following HAH personnel: Mr Nigel Williams, head of private healthcare services, Ms Jennifer Ruth Poole, group commercial director, Mr Andrew Deller, commercial director for private patient services, Ms Karen MacRae, regional clinical director, Mr Martin Lee, superintendent pharmacist, Mr Christopher Carver, head of logistics, and Mr Michael Dickson, director of clinical and information governance. HAH called as an expert witness Dr Nicholas Payne, the chairman of the National Clinical Homecare Association. It also led the evidence of three members of the Clinical Advisory Panel ("CAP"): Mr James Warnock, West of Scotland regional procurement project manager, Ms Carla Forté, lead clinical pharmacist for cancer services, North Glasgow, and Dr Angela Bowman, consultant medical oncologist at the Edinburgh Cancer Centre.

[54] CSA called the following members of the CAP: Ms Kathryn Brechin, clinical nurse manager in cancer and palliative care services at NHS Lothian, Ms Rachel Wilson, principal pharmacist for NHS Grampian, Mr Ewan Morrison, acting associate director for acute services in NHS Lothian, and Dr Judith Fraser, consultant in medical oncology at the Beatson West of Scotland Cancer Centre. CSA called two CSA officials who were involved in the procurement process: Mr Andrew Stewart, commodity manager in the National Procurement division of CSA and Ms Colette Whigham, category manager in the pharmacy team within the strategic sourcing department of National Procurement, both of whom facilitated the tendering process and established the CAP. It also called Mr Martin Dowds, the solicitor who compiled the email which I have quoted in paragraph [51] above. Finally, CSA led the evidence of Ms Susan Edie, who at the relevant time was BUPA's regional manager for Scotland.

Discussion

[55] I consider each of the challenged sections of the ITT before addressing the challenge to the adequacy of the reasons which CSA gave for its decision. It is important to see the challenges in their proper context. First, both tenders were of high quality and the overall difference in their scores was small. The scorers for CSA had to make fine judgements on the differences between two good tenders. Secondly, the three sub-criteria which HAH has challenged were high-scoring sections and in two (8.3.1 and 8.3.2) a tenderer could be awarded scores for exceeding the NHS Requirement. BUPA's scores in those two sections reflected some credit for so exceeding the NHS Requirement.

(i)                Section 8.2.1

[56] HAH criticised this section of the ITT (which I set out in paragraph [43] above) for a lack of clarity. HAH's employees did not appreciate that they had to give details in this section of the reporting of any errors in compounding or dispensing which were picked up either at those stages or later when the drug was delivered to the nurse for administration to the patient. HAH had included its quality management system in its response to section 7.5.5 of the ITT and did not appreciate that it had to address the issue again in section 8.2.1. The ITT had not made explicit that the CSA intended to adopt a "silo" system of scoring by which some scorers would mark some sections but not others and that scorers would not see the entire tender when scoring their allocated sections. It was unusual to score tenders that way and the use of that method should have been flagged up more clearly. The ITT therefore lacked transparency.

[57] Further, the use of the expression "not limited to" in the statement of what the tenderer is to cover in its response to the section lacked the required clarity. CSA's approach appeared to require of tenderers information on undisclosed sub-criteria contrary to EU law.

[58] Mr Sandison also criticised the lack of clarity in the expression "clinical error" which was used in the phrase "clinical error reporting system" in Mr Dowds' e-mail of 27 May 2010 (paragraph [51] above). The evidence of the scorers suggested that they had different views of which the expression meant. Nor was it clear, as that e-mail suggested, that the section invited details of audit requirements and an account of turnaround times for events which were not the result of a change in prescription.

[59] I am not persuaded that there is substance in these criticisms. First, I do not think that HAH can rely on what it stated concerning its quality management system in answer to section 7.5.5 and its attachments to that answer. It was clear from the structure of the ITT that section 7 concerned conditions for participation and that the material in that section related to the qualitative selection criteria which EU law recognises as separate from the award criteria for the evaluation of which tender is most economically advantageous. See paragraph [17] above. Section 7 was concerned with whether a tenderer could provide the services; each section within section 8 was concerned with a different question, namely how would the specific requirement be met? In addition, section 7.5.5 requested tenderers to upload copies of their certification and of their quality management system. It also disclosed that the response was unscored. To my mind the hypothetical tenderer would be expected to foresee that a response in an unscored section would not contribute to the marking of a scored section. While CSA will have been aware that HAH had a quality management system because it had met the requirements of section 7 of the ITT, the application of that system to the control of compounding and dispensing was not disclosed in section 8.2.1.

[60] Secondly, as Mr Clarke submitted, it was implicit in the ITT that sections might be scored individually. Section 3.1 disclosed the existence of a tender evaluation panel and the CAP. It was clear that different areas of expertise, in pharmacology, nursing, oncology, and project management, would be needed to assess the tenders and it was reasonably foreseeable that, just as the tenderers had had to use different personnel to compile particular sections of their tenders, CSA would use different experts to mark different sections. Ms Susan Edie of BUPA gave evidence that she had been aware of this and also of the need for a tenderer to include everything relevant in a response to a particular section. Section 4 of the ITT gave the essential instructions to tenderers on how to complete their tenders. Tenderers were instructed to complete their tenders fully and accurately (section 4.1); they were told they had to complete all sections fully (section 4.3). In the latter section it was clearly stated:

"Attachments must be attached everywhere they are relevant. Do not reference attachments in other sections as they may not be considered."

This in my opinion clearly indicated that there would be no overview of the tender as a whole but that scorers of some sections might not see the responses to other sections. Further, section 4.1 referred tenderers to, and section 4.4 set out the process for obtaining clarification if tenderers were in doubt about how they were to complete their tenders. Section 8 opened with the words:

"Potential Framework Participants must ensure that they answer fully the questions contained within this Section."

It was sufficiently clear that each section had to completed in full and that tenderers had to err on the side of caution by providing full responses to each section without cross-referring to other parts of the tender. If a tenderer was unsure about the meaning of the instructions, he was given a means of obtaining prompt clarification.

[61] Thirdly, I do not think that CSA is to be criticised for stating in section 8.2.1 that the areas which the responses were to cover were "not limited to" the stated items if a topic which was not listed was reasonably foreseeably within the purview of the question. Dr Payne stated that it was commonly used in NHS tenders. In so far as it introduced an element of vagueness it appears to me that the reasonably well-informed tenderer would respond by giving as comprehensive an answer as possible within the scope of the question. It was clear from the stated items that CSA was looking for information on how a tenderer would check the quality of its work in compounding and dispensing the drug not only at the time of compounding and dispensing but also at various later stages in the process until the administration of the correct quantity of the correct drug to the individual patient. If a mistake in compounding or dispensing were not detected when the prescribed drug was still in the contractor's facility, later intervention, for example by the nurse on a homecare visit to administer the drug to a patient, might disclose the error before the patient suffered adverse consequences through the administration of an incorrect dosage. Feedback from a patient to whom an incorrect dose was administered would also be relevant, not least as it would reveal defects in the system of checks before the drug was administered. Having regard to the nature both of the drug and the patients' medical condition, the Participating Authorities had an obvious interest in the contractor's control of the compounding and dispensing process, its checks on the accuracy of the product of that process and the reporting of any failures in that process to produce the correct prescription for the patient. The service specification at paras 9.13 and 10.5 flagged up the need to notify a Participating Authority of interventions and errors. In order to make the system of checks efficacious it was also relevant to know how a tenderer proposed to use information obtained from reports of errors to avoid repetition of mistakes.

[62] Fourthly, I do not think that the reference in the e-mail of 27 May 2010 to BUPA's having highlighted "audit requirements" meant that CSA had expected tenderers to detail their audit systems in answering section 8.2.1 and had thus failed to give notice of a element which it would take into account in identifying the most economically advantageous tender. Mr Ewan Morrison explained that BUPA's tender had shown that there was a means of checking that action to correct a mistake had been taken. The phrase "audit requirements" referred to that consideration. I think that it was reasonably foreseeable to the hypothetical tenderer that such a check on corrective action would fall within the response to the question.

[63] Fifthly, while the section referred as an example to "turnaround times for changes" and did not mention turnaround times for other events, such as a need to replace the product for other reasons, it appears to me that including more general information on turnaround times for the replacement of a drug dispensed for a particular patient was a foreseeably relevant response to the request in this sub-criterion as it related to the quality of service which a tenderer would provide in its compounding and dispensing process. I note that several of the witnesses involved in assessing the responses to this sub-criterion saw this as relevant, as did BUPA.

[64] Finally, Dr Nicholas Payne, whom HAH called as an expert witness, said he would have expected a tenderer to address in reasonable detail its communication of the results of interventions and clinical error reporting in its response to this sub-criterion. He accepted on cross-examination that it was sensible for a tenderer to err on the side of caution and include relevant material on quality control and auditing in its response to this question.

[65] Dr Payne concluded that both HAH and BUPA had provided very good responses. He expressed the view that it was very difficult to distinguish between their responses. I do not question his expression of that view but I recognise CSA's margin of appreciation in matters of judgment or assessment. HAH has not established that CSA was guilty of a manifest error of assessment in its scoring of this question.

[66] I discuss Mr Sandison's criticisms of the wording of the e-mail of 27 May 2010 below when I consider the adequacy of the statement of reasons.

(ii)              Section 8.3.1

[67] HAH criticised this section (which I quoted in paragraph [44] above) on five grounds. First, Mr Sandison submitted that CSA's emphasis in its two statements of reasons on BUPA's having given more details of staffing levels meant that it had taken into account a qualitative selection criterion, contrary to the clear instructions of EU case law (the seventh proposition in paragraph [17] above). Secondly, he argued that the reliance on information about staffing levels could not be justified by the vague criteria in section 3.3(3) of the ITT which gave additional marks for a "creative and innovative response", "value added areas", "comprehensive response", "good understanding of NHS Requirement" or "adequate and complete evidence of ability to exceed NHS Requirement". Those criteria were, he asserted, essentially vague and open to subjective interpretation. Thirdly, it appeared that HAH had been marked down for lacking the detail which BUPA gave about the transfer of patients to a compounding service. This involved a lack of equal treatment as HAH was the incumbent provider which did not need to make the transfer which a new contractor would have to effect.

[68] Fourthly, he submitted that if CSA required a detailed implementation plan as part of the response to this sub-criterion, that related to a tenderer's ability to perform the contract and was a qualitative selection criterion rather than an award criterion. In any event, a detailed implementation plan would be theoretical or speculative until the contractor knew the requirements of any additional authorities which might in future accede to the Framework Agreement and become Participating Authorities. It was therefore a manifest error of assessment to treat the provision of such a detailed plan as part of the assessment of the most economically advantageous tender. Fifthly, if details of training packages were relevant to the response to this section as the e-mail of 27 May 2010 suggested, the sub-criterion lacked the needed clarity as it did not disclose that a tenderer had to provide in its response details of all training issues, and not merely the initial training of recruits to deal with increased numbers of patients. Additionally, HAH had included details of its training material in other parts of its response, principally in sections 8.2.3 and 8.3.5. The failure of CSA to consider such material in assessing responses to section 8.3.1 because of its "silo" method of scoring was neither transparent nor proportionate. It involved a manifest error of assessment or a failure to treat tenderers equally.

[69] Again I am not persuaded that HAH has established the validity of its criticisms. It is clear from its terms that sub-criterion 8.3.1 sought tenderers to provide information on how they would implement the contract with a Participating Authority in order to maintain the standards of care of its patients. As it was envisaged that other authorities might accede to the Framework Agreement and as a result more patients would come to be treated under contracts governed by the Framework Agreement, the section requested tenderers to give details both of how they would implement the contract and also manage a change in business volumes.

[70] Dealing with each criticism in turn, I am not persuaded that CSA considered a qualitative selection criterion in its consideration of how the tenderers would handle the expected increases in the volume of demand for their services. In particular I accept the evidence of Dr Judith Fraser (in para 23 of her written statement and on cross-examination) that her concern was the lack of detail in HAH's tender about how it would provide the needed skilled staff to perform the contract properly. She was aware that HAH, as the incumbent supplier, already had staff in Scotland. It was not a concern about HAH's ability to perform as such but the lack of detail on how HAH would perform in its response to the question posed. BUPA by contrast was very clear on how it would increase staff levels to meet an increase in demand in a way which would not harm the NHS by poaching nursing staff. It seems to me that on this evidence the differential in scoring of the responses to this sub-criterion related to an "award" issue of how the contract would be performed rather than an "ability" issue which is a qualitative selection criterion. Ms Kathryn Brechin's evidence in her witness statement and on cross-examination was consistent with this view.

[71] Secondly, I do not see any grounds for excluding consideration of, and the award of extra marks to, creative or innovative responses. I do not accept the submission that novelty is a subjective criterion. In the law of patents it is a familiar concept with which the court deals by assessing objectively the state of the prior art and the asserted innovation. I do not think that the word "creative" adds anything to the word "innovative" in the context of section 3.3(3) of the ITT (paragraph [33] above). I note that in Mears Limited (above) Ramsay J had no difficulty with questions which sought and rewarded innovative responses or responses which provided added value. He recognised that such questions invited a broad range of answers but did not see that as invalidating the exercise. If public procurement law were to outlaw such questions that would prevent or at least materially hinder public bodies from seeking the assistance of tenderers in designing improvements of the services which they provide.

[72] Thirdly, I see no proper basis for the assertion of discrimination or unequal treatment. It was clear from the evidence of Dr Judith Fraser and Ms Kathryn Brechin that the scorers were aware of HAH's status as incumbent supplier. Dr Fraser's and Ms Brechin's position was that, while HAH's response met the NHS Requirement, BUPA's detailed response, which had innovative approaches to recruitment, staff development and collaborative working, merited a score for going beyond that requirement. BUPA provided a response which gave greater confidence about its ability to respond to increases in demand; it also had a more detailed exit strategy, which Ms Brechin saw as important.

[73] I do not accept, fourthly, that an implementation plan was a qualitative selection criterion. CSA was looking for information on how each tenderer proposed to implement the contract and respond to increased demand. As Mr Clark submitted, because compounded Herceptin had a limited usable life, the Participating Authorities had a particular interest in the quality of service which a tenderer would provide to patients with a serious illness, especially in outlying areas. The presentation of a plan was simply evidence of how a tenderer proposed to perform the contract. I do not doubt that, as several of HAH's employees, including Ms Jennifer Poole and Mr Christopher Carver, suggested, such a plan would be theoretical if it were very detailed as the details of implementation would depend on the requirements of acceding authorities. What the scorers appear to have done is to award higher scores to BUPA's plan which indicated how it would manage both the existing level of service and a change in business volumes. CSA was entitled to expect HAH to provide information on these matters although it was incumbent supplier as otherwise it would be treating tenderers in a discriminatory manner. Again as Mr Clark submitted, HAH's expert, Dr Payne, opined that an implementation plan was needed and that BUPA's response was more comprehensive than HAH's and had the level of detail which was required.

[74] Fifthly, the comment in the e-mail of 27 May 2010 that "insufficient detail on training packages was included" meant that CSA expected tenderers to provide details of all relevant training packages. It seems to me that it was reasonably foreseeable by the hypothetical tenderer that training of staff would be relevant in a response to the sub-criterion of how it would implement the contract and cope with increased demand. The detail which it presented on the subject was a matter for its judgment. HAH provided some information on training in its response to section 8.3.1. While HAH provided further information on the training of nurses in its response to sub-criterion 8.2.3 and training in relation to product handing in its response to sub-criterion 8.3.5, what I have said in paragraph [60] above about its criticism of the "silo" approach to scoring applies equally here. I see no manifest error of assessment or failure to treat tenderers equally.

(iii)            Section 8.3.2

[75] HAH has criticised this section of the ITT, which I have quoted in paragraph [45] above, on four grounds, which arise out of the disclosure of reasons in relation to this sub-criterion in the e-mail of 27 May 2010 (paragraph [51] above).

[76] First, it asserted that the ITT lacked clarity because it failed to indicate that the mode of learning from the occurrence and treatment of contingencies should be included in the response rather than in section 7.5.5. Secondly, it reiterated in this context its criticism of the "silo" method of assessment.

[77] Thirdly, HAH submitted that the inclusion of these matters in the assessment was not justified by the statement in section 8.3.2 that the response was "not limited to" the stated items or by the terms of section 3.3(3), which awarded extra marks for "a creative or innovative" response. Those formulae amounted to the inclusion of undisclosed sub-criteria.

[78] Fourthly, some of the scoring panel, and Mr Ewan Morrison in particular, had completely misapprehended HAH's tender by assuming that HAH was offering to provide a vial service as a solution for incorrect delivery, when it was offering such a service only in the very unlikely contingency of the simultaneous failure of both the compounding facility from which HAH obtained its supply and a separately owned and geographically remote compounding facility which HAH would use as a back up. Some of the panel, such as Dr Fraser, had not made that error. But if a significant proportion of the panel were so mistaken, that was a manifest error of assessment.

[79] It seems to me that an incident reporting plan which would enable the contractor to learn lessons from a contingency was reasonably foreseeable to the hypothetical tenderer as part of the response to this sub-criterion. I see no warrant for the repeated assertion by HAH's witnesses that the sub-criterion required tenderers to address only major incidents because the sub-criterion was addressing how a tenderer would ensure compliance with its obligations on the occurrence of contingencies and because the response was expressly not confined to the stated items. The section expressly covered the contingency of an incorrect delivery. Dr Payne in his written statement (paras 18 and 19) saw an incident reporting plan as part of the response. He criticised the ITT for what he called its "ambiguity" and because questions overlapped in a number of areas. That seems to me to include a criticism of the "silo" method of assessment as he advocated an overall review of the tender response as part of the evaluation. While I can see the drawbacks of the assessment of sub-criteria separately and understand his criticism of the approach, I also recognise the utility of the approach where different disciplines are involved in the assessment of particular responses and have no expertise to contribute in relation to other responses. It was a matter for the judgment of the CSA which approach it adopted. In my view the issue is whether the hypothetical tenderer had adequate notice of CSA's intention to score the various sub-criteria separately. For the reasons which I set out in paragraph [60] above, I consider that it did. That deals with the second challenge.

[80] Thirdly, I am not satisfied that there is any substance in the attack on the phrases in section 3.3(3) ("creative or innovative") for the reasons which I have stated in paragraph [71] above. Nor do I see any basis for attacking the expression "include but are not limited to" in sub-criterion 8.3.2. If, as I have held, an incident reporting plan was a reasonably foreseeable part of the response to the sub-criterion, the phrase was not a vehicle for introducing a new and undisclosed sub-criterion.

[81] I have had more difficulty with the fourth challenge because it depended upon the reasoning adopted by the various scorers and I have not had detailed evidence on this matter from all of them. Mr Sandison invited me to infer from Mr Morrison's evidence that there had been a manifest error in assessment. I was initially impressed by the submission but after further consideration I have decided not to uphold it for the reasons set out below.

[82] Mr Morrison's evidence in his written statement was that the sub-criterion was looking for details of production facility back-up, supply and delivery arrangements and contingency for an incorrect delivery. He stated the distinction between the two tenders as follows:

"46. Healthcare at Home provided a large amount of general contingency information and a major incident plan. Back-up production details and local contingency were ill-defined. The main concern discussed at the group meeting was that Healthcare at Home for contingency, and specifically when there was an incorrect delivery, would provide a vial-based service as opposed to a pre-compounded service. This tender was for a compounded service only. In summary a major incident plan was provided with a considerable amount of unfocused information regarding production back-up. There was also the contentious position of using a vial based service for incorrect delivery.

47. BUPA provided a focused contingency plan which clearly set out answers to the specific points that were requested. They would maintain a compounded service and included information on local action. They provided added value on how they would reflect on their performance after a contingent event, a multi-level contingency plan and details of malpractice indemnity insurance."

[83] On examination in chief he was shown his collaboration record which detailed his marking of HAH's tender. He gave evidence that the main issue which he had recorded was HAH's lack of a multi-factorial contingency plan to deal with local failures, such as an incorrect dosage or a driver not turning up or other local contingencies. Its offer to supply a vial-based service as part of the contingency was also a concern. He had stated in his comments:

"Unclear what would happen with an incorrect delivery - looks like vials would be used."

On cross-examination he accepted that para 46 of his statement was wrong and that he should have said "for example when there was an incorrect delivery". He thought that other scorers proceeded on the basis that HAH was offering a vial service if there was an incorrect delivery. He accepted on re-examination that HAH had not stated in its response to sub-criterion 8.3.2 that it would use a vial service if there was a misdelivery.

[84] Dr Judith Fraser's recollection in both her witness statement and her oral evidence differed from Mr Morrison's. She was aware that HAH's first fall-back was the use of another unit as a compounding service and that its second level of fall-back was the use of a vial service. She thought that scorers were concerned that a vial service was included as a contingency plan but that there was more concern that there was not much detail about the fall-back compounding service if it were needed.

[85] The relevant excerpt from the rather brief minutes of the meeting of the CAP on 28 April stated:

"Healthcare at Home - Healthcare at Home submitted a contingency proposal that included the possible use of vials, the group felt that this was not a viable option due to risk involved and that the tender is for a compounded product. The group agreed another option available to Healthcare at Home would have been to secure a supply of the compounded product from another source, however that was not detailed in there [sic] response and the group scored accordingly. JF, RW and KB down to 66.6%."

[86] That brief statement is consistent with Ms Kathryn Brechin's evidence that HAH's score was lowered because it had included a vial service as a contingency when the ITT required the contractor to ensure that a compounded product was available. Ms Rachel Wilson, the other scorer who is recorded as having reduced her score, was not asked about her views on the provision of vials as a fall-back. In her witness statement she recorded that BUPA's contingency plan was better than HAH's and that HAH had not submitted an incident reporting plan. In her oral evidence she was referred to the reasons set out in CSA's letter of 13 May 2010 (which I quoted in paragraph [48] above) and confirmed that reflected what she had taken into account in scoring HAH in relation to sections 8.3.1 and 8.3.2. The distinction set out in that letter was between BUPA's offer to supply the drug in compounded form in all circumstances and HAH's offer to use a vial service if its first line of contingency for the supply of the compounded drug was insufficient.

[87] Mr Clark also submitted that HAH's response to section 8.3.2 was open to the construction that it proposed to use vials as a fall-back more widely than solely when HAH's principal compounding facility and its back-up facility were unable to supply. I do not read HAH's submission in that way. HAH set out the consequences of a major fire at its head office and explained that its customer services and prescription information was held electronically, backed up and stored off site. It continued:

"Customer Services, distribution and Pharmacy would be transferred to HAH's sister site at Featherstone. The Compounding Unit supply service would be transferred to the backup resource at Quest. HAH Compounding Unit has a technical agreement in place with a back up facility, that has the capacity to support the Company should a major crisis occur. Please see attached technical agreement. If there was disruption to the compounded service[,] supply of a Herceptin "vial" service could continue from Featherstone pharmacy with the Authorities permission on a temporary basis to ensure no disruption to patient care."

I read this statement as suggesting that a vial service could be provided if both HAH's compounding unit and the back-up facility were unable to maintain supplies of the compounded drug.

[88] Nonetheless, I am not persuaded that Mr Sandison has demonstrated that CSA was guilty of a manifest error of assessment. BUPA offered to provide a compounded drug in all contingencies. MMS in the letter of 20 May 2010 (paragraph [49] above) questioned whether that could realistically be achieved, but that is not a matter which is relevant to my task. I was impressed by Dr Fraser's evidence which she gave in a clear, careful and thoughtful manner, and prefer her recollection to that of Mr Morrison. Her account of what concerned the scorers ties more closely with the minutes and the more limited accounts concerning this issue of Ms Brechin and Ms Wilson, whose evidence was adduced before that of Mr Morrison and Dr Fraser. It seems to me that the scorers were aware that HAH had a back up facility but were concerned about the lack of detail about that facility. They appeared to have been concerned that HAH was proposing to use a vial service as a fall-back in circumstances in which BUPA was offering to provide a compounded product. This concern was not misplaced as Ms Jennifer Poole gave evidence on cross-examination that HAH considered using a vial service as a fall-back if a problem occurred on a delivery because compounded Herceptin had a short shelf life. It also appears from Dr Fraser's evidence that there may have been some concern among the scorers in a different context that HAH's Herceptin compound had a shorter shelf life than that which BUPA proposed to supply but it was not suggested that those concerns formed part of the scorers' assessment of the responses to section 8.3.2. In the circumstances HAH has not shown that there was a clear error of assessment which would cause this court to interfere with the CSA's decision on this matter.

(iv)            The reasons stated

[89] HAH's solicitors did not flag up a challenge to the statements of reasons in their letters in May 2010 nor did HAH focus on a challenge under Regulation 32 in its written pleadings. Mr Clark however was prepared to answer a case that CSA had not given adequate reasons.

[90] Mr Sandison challenged the adequacy of CSA's statements of reasons and founded on the ECJ's statement in Strabag Benelux of what a contracting authority has to do to make the reasons for its decision clear to an unsuccessful tenderer (see paragraph [22] above). I consider the challenge in relation to each of the impugned sub-criteria.

(a)  Sub-criterion 8.2.1

[91] Mr Sandison criticised the e-mail of 27 May 2010 (paragraph [51] above) for lack of clarity in the following six respects:

(i) The phrase "clinical error reporting" was unclear;

(ii) The phrase "lack of evidence in key areas" was indeterminate;

(iii) The phrase "cycle of awareness of and reflection on" incidents raised an issue on which the ITT had not focused;

(iv) There was a contradiction between the letter of 13 May which identified as a relative advantage of the successful tenderer the statements in BUPA's response that clinical checks would include checks on blood and scan results in accordance with Participating Authorities' protocols and the e-mail of 27 May which stated that that did not enhance BUPA's score;

(v) It was not clear that the reference to the clarity of "the turnaround time for changes," for which BUPA was commended, was a criticism of HAH for failing to deal with turnaround times for events not resulting from a change of prescription; and

(vi) It was unclear what was the scope of BUPA's highlighting of "audit requirements" which was said to have provided additional quality assurance.

[92] I do not think that it is appropriate to assess the quality of statements of reasons by examining individual phrases out of their context. What Mr Dowds stated in the e-mail of 27 May 2010 needs to be seen in the light of both what CSA said in its letter of 13 May and MMS's challenges in their letter of 20 May.

[93] It does not matter whether witnesses can agree on what is a "clinical" error or what is properly categorised as some other sort of error. What the first paragraph of the comments on section 8.2.1 in the letter of 13 May 2010 and the first paragraph of the e-mail which I have quoted in paragraph [51] above were addressing was the quality of the system which each tenderer had put forward for the detection of errors in compounding and dispensing, the reporting of such detection and the lessons for the future which a tenderer could obtain from those reports. That is the context of the phrase "lack of evidence in key areas" and also of the "cycle of reflection and awareness". Notwithstanding Mr Sandison's skilful questioning and submissions I am not persuaded that the recipients of the communications were left in any real doubt as to the thrust of the points which were being made as to why HAH had been unsuccessful and characteristics and relative advantages of BUPA's tender.

[94] Nor am I persuaded by Mr Sandison's submission that the contradiction between the letter of 13 May 2010 and the e-mail of 27 May left HAH in a state of uncertainty as to which account of the significance of checks on blood and scan results CSA was putting forward as its position. Mr Sandison suggested that HAH would not know which statement was true. But that is not the point. What CSA stated in the second paragraph of its comments on section 8.2.1 in the letter of 13 May would understandably have given rise to an inference that HAH had been marked down for not stating how it would ensure compliance with local Participating Authority protocols. MMS raised this issue in their letter of 20 May 2010. That prompted Mr Dowds to enquire about the scoring of the tenders in relation to compliance with the protocols and his confirmation in the e-mail of 27 May that that issue did not affect the score awarded to either tenderer. In my view the reasonable recipient of the e-mail would interpret it as a qualification of what had been said in the letter of 13 May so as to clarify that that difference between the tenders had not had an effect on the scores. It thus excluded the inference which otherwise would have been taken from the earlier statement. Looking, as I must, to the information available to HAH when it commenced the legal proceedings, it appears to me that CSA had qualified an earlier statement which foreseeably would have given rise to an incorrect inference.

[95] I consider that the fifth and sixth criticisms of the e-mail of 27 May (turnaround times for changes and audit requirements) are not well founded. In the context of a sub-criterion concerned with the quality of and checks on the compounding and dispensing processes, both the speed with which a product could be replaced and the audit of those processes to ensure that corrective action was taken if mistakes had been made were relevant considerations. Viewing the comments in their context Mr Dowds was simply recording that the scorers had thought that BUPA's response in these areas was of higher quality than HAH's.

(b)  Sub-criterion 8.3.1

[96] HAH put forward three criticisms of the reasons given in relation to the responses to section 8.3.1. First, if, contrary to its submission (paragraph [67] above), the references in the letter and e-mail to staffing numbers or staffing levels were properly part of an assessment of the quality of the offered service and thus part of an award criterion, there had been a failure to make it clear that this was a criticism of the proposed quality of the service. Secondly, HAH adopted a fall-back position in relation to its criticism (paragraph [68] above) of the requirement of an implementation plan in the e-mail of 27 May. It asserted that if the criticism was about something other than a failure to produce as detailed and comprehensive an implementation plan as BUPA's, the nature of that criticism was not clear. Thirdly, there was a lack of transparency in CSA's position. In the last sentence of the first paragraph of the e-mail addressing section 8.3.1 Mr Dowds recorded that

"The transfer of existing patients from an existing vial service to compounded process is a significant change which was not detailed in the [HAH's] response."

Mr Sandison contrasted that statement with what he said was the position adopted by CSA in the proof, that that transfer was not a significant consideration. If the latter position were correct, the reasons given in the e-mail lacked transparency.

[97] I think there is no substance in the first criticism. The references to staffing numbers or levels were made in the context of a representation of how BUPA's response was better than HAH's in describing how it would implement the contract and deal with increases in demand. I consider that a reasonably well-informed recipient of the statements of reasons would have interpreted the comments as relating to the quality of the offered service.

[98] The short answer to the second criticism is that the fall-back position does not arise because CSA's scorers considered that BUPA's implementation plan was more comprehensive and detailed than HAH's and awarded scores accordingly.

[99] The third criticism depends on there being a contradiction between what Mr Dowds stated in the e-mail and what the relevant scorers stated in their evidence at proof. I am not persuaded that the evidence demonstrated the asserted contradiction. Each of the scorers of this section who gave evidence commented on the relative lack of detail in HAH's response on how it would implement the contract. Each scorer was free to make an individual assessment of a response. Individual scorers focused on different issues. Mr Warnock, Mr Morrison and Ms Brechin gave evidence that they did not question HAH's ability to effect the transfer from vial to compounding or see the issue as important. Ms Rachel Wilson however gave evidence that she thought that HAH should have explained in its implementation plan how it would transfer patients, to whom it was giving a vial service under the then current arrangements, into the compounded service. It seems to me that what Mr Dowds recorded about the transfer from the vial service is an accurate statement of Ms Wilson's view. In short, both the letter of 13 May 2010 and the e-mail recorded the view of the scorers that HAH's response was not as comprehensive or detailed in its description of how it would implement the contract as BUPA's. The e-mail sought to expand on what was said in the letter. The sentence which HAH challenged was simply a record of a point which one of the scorers had considered to be a significant component of the lack of detail which caused each scorer to assess BUPA's response as better that HAH's. I see no lack of transparency here.

(c)   Sub-criterion 8.3.2

[100] Mr Sandison did not directly criticise the statements of reasons in relation to this section but a question arose in the context of the discussion in submissions about whether the scorers had misunderstood what HAH had said in its response about the circumstances in which it would use vials as a fall-back (paragraphs [81] - [88] above).

[101] In my opinion if one reads what CSA said about the responses to this section in its letter of 13 May 2010 and what Mr Dowds recorded in his e-mail, what is represented is consistent with Dr Fraser's evidence which I have accepted. The e-mail also included this sentence:

"It was unclear what would happen where an incorrect delivery was made and although vials were proposed, these were outwith the scope of the Framework."

That statement appears to reflect Mr Morrison's understanding. Ms Colette Whigham and Mr Andrew Stewart of CSA gathered information to assist Mr Dowds to make the more detailed response in the e-mail. Most of the information was obtained from the scorers' comments sheets but Mr Stewart also spoke with Mr Morrison to clarify his position (Mr Stewart's witness statement para 33).

[102] I do not think that it matters if Mr Morrison's view was not shared by the other scorers. If one considers the text of both the letter of 13 May 2010 and the subsequent e-mail, I think that CSA gave HAH a clear statement in relation to this sub-criterion of why it had not been successful and of the characteristics and relative advantages of BUPA's tender.

[103] Standing back from the detail of the challenges, I am satisfied that CSA gave HAH sufficient information to allow it to articulate its challenges to the decision and bring the legal proceedings in which it has aired its grievances. While it is almost always possible for a person drafting a statement of reasons to improve the document if he is able to reflect on it at leisure, I am persuaded that the statements of reasons met the required standards of clarity. Accordingly, HAH fails in its challenges to the sufficiency of the stated reasons.

Other matters:
(a) the e-tender process and the limitation on the size of response
[104] Mr Nigel Williams and Mr Andrew Deller gave evidence that HAH had had to edit some of its responses to keep the text within the limits imposed by the size of Microsoft Excel boxes in the e-tender system. Nonetheless, as Mr Clark pointed out, HAH attached to its response to section 8.3.1 a Word document setting out its exit strategy and ought to have been aware that it could do so in other sections. I am therefore not clear as to the extent of any misunderstanding within HAH whether it could do so.

[105] It is unfortunate if this misunderstanding occurred as it may have prevented HAH from presenting its responses in a more attractive manner. But I do not think that this can affect the outcome of this action. First, the complaint was not made in a timely manner as Regulation 47(6) requires. Secondly, as stated above, HAH appears to have attached a document setting out part of its response to section 8.3.1. Thirdly, and in any event, HAH did not establish in its evidence that it was prejudiced in its responses to the challenged questions by the constraint of the size of the e-tender boxes. Mr Deller's evidence was that HAH had not omitted anything that was relevant.

(b) The defender's objections

[106] Mr Clark objected to a number of matters raised in the evidence of HAH's witnesses. I have dealt with some of the matters covered by the objections, such as the alleged failure to consider the contents and attachments of the response to section 7.5.5, as I consider that CSA was not prejudiced by any lack of written pleadings. HAH's witnesses also commented on several occasions on the content of BUPA's tender and expressed views that there was no justification for it to have received higher scores than HAH in those matters. Similarly witnesses expressed views that HAH had given sufficient information on particular topics. HAH had pleaded some comparisons between its and BUPA's responses but it had not given notice of other comparisons. In relation to the latter there is substance in Mr Clark's objections and I have not addressed those parts of the evidence. In any event the comparisons, including those pleaded, amounted to expressions of opinion and did not demonstrate any manifest error of assessment which would have justified the intervention of the court.

Conclusion

[107] As HAH has failed in its challenge I uphold the second plea in law for the defender and grant decree of absolvitor. I reserve all questions of expenses and will have the case put out by order to address those issues.

Postscript

[108] While I have held that the ITT gave sufficient notice of what HAH described as the "silo" system of marking the responses to alert the hypothetical reasonably well-informed and normally diligent tenderer, it appears in this case that some experienced employees of HAH had not appreciated that CSA intended to adopt this procedure. It is easy with hindsight to identify further steps which can be taken to avoid unfortunate circumstances. One such step might be for CSA to state explicitly in its instructions to tenderers on the completion of tender documents that under its system its scorers will receive only the responses in relation to the sub-criteria which they are asked to mark and that they will have regard only to the content of the individual response when allocating a score to that response. Thus a matter which was implied can be made explicit.

[109] Secondly, Dr Judith Fraser's evidence suggested that scorers may have had differing views as to whether they could have regard in marking one section to what they had read when marking another section. There was no evidence that those differing views had had any adverse effect on HAH in relation to the scoring of the impugned sections. Such evidence as there was suggested that it had not. Nonetheless, that uncertainty among the scorers could be avoided if CSA were to instruct them so as to promote a uniformity of practice.

[110] Thirdly, the court should try to devise a way of determining public procurement challenges more speedily as they can prevent a public authority from placing a desired contract, even when they are ultimately found not to have any merit. I think that this is a topic which should be raised with the Consultative Committee on Commercial Actions.