CASELEX:EU:2010:13 – Public Procurement Law – Procedures for review of the award of public contracts

This reference for a preliminary ruling has been made by the High Court of Justice (England and Wales) in the context of a dispute between the applicant, Uniplex (UK) Ltd (‘Uniplex’), and the defendant, NHS Business Services Authority (‘NHS’), concerning the conclusion of a framework agreement.

Uniplex, a company established in the United Kingdom, is the sole distributor in that Member State of haemostats manufactured by Gelita Medical BV, a company established in the Netherlands.

NHS is part of the National Health Service, the State-owned and -operated public health service in the United Kingdom. It is a contracting authority for the purposes of Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts.

On 26 March 2007 NHS launched a restricted tendering procedure for the conclusion of a framework agreement for the supply of haemostats. A notice to that effect was published in the Official Journal of the European Union on 28 March 2007.

On 13 June 2007, NHS issued an invitation to tender to five suppliers, including Uniplex, which had expressed interest in that framework agreement. Tenders were to be submitted by 19 July 2007.

The award criteria, with the relevant weighting to be given to each, set out in the tendering documentation sent to the tenderers, were as follows: price and other cost effectiveness factors (30%); quality and clinical acceptability (30%); product support and training (20%); delivery performance and capability (10%); product range/development (5%); and environmental/sustainability (5%).

Uniplex submitted its tender on 18 July 2007.

On 22 November 2007, NHS sent to Uniplex a letter indicating that it had decided to conclude a framework agreement with three tenderers. Uniplex was notified that it would not be awarded a framework agreement, as it had obtained the lowest marks of the five tenderers which had been invited to submit, and which had submitted, bids. That letter set out the award criteria, with the corresponding weighting, and indicated the names of the successful tenderers, the range of the successful scores and Uniplex’s evaluated score.

According to that letter, the range of the successful scores was between 905.5 and 971.5, whereas Uniplex had obtained a score of 568.

The letter of 22 November 2007 also informed Uniplex of its right to challenge the decision to conclude the framework agreement in question, of the mandatory 10-day standstill period that would apply from the date of notification of that decision to conclusion of the framework agreement, and of Uniplex’s entitlement to seek an additional debriefing.

Uniplex requested a debriefing by e-mail dated 23 November 2007.

NHS replied on 13 December 2007 by providing details of its approach to the evaluation of the award criteria as to characteristics and relative advantages of the successful tenders in relation to Uniplex’s tender.

That letter stated, inter alia, first, that Uniplex had been given a score of zero for price and other cost effectiveness factors because it had submitted its list prices. All the other tenderers had offered discounts on their list prices. Secondly, with respect to the delivery performance and capability criterion, all tenderers which were new to the haemostats market in the United Kingdom received a score of zero for the sub-criterion relating to customer base in the United Kingdom.

Further Details of Case C 406/08 – Caselex