Non-compliance of a RWIND tenderer ("reasonably well informed and normally diligent). Dont Assume.

𝗡𝗲𝘄 𝗽𝗿𝗼𝗰𝘂𝗿𝗲𝗺𝗲𝗻𝘁 𝗹𝗮𝘄 𝗰𝗮𝘀𝗲 - 𝗿𝗲𝗷𝗲𝗰𝘁𝗶𝗼𝗻 𝗼𝗳 𝗮 𝗻𝗼𝗻-𝗰𝗼𝗺𝗽𝗹𝗶𝗮𝗻𝘁 𝘁𝗲𝗻𝗱𝗲𝗿

𝗖𝗮𝗽𝗶𝘁𝗮 𝗕𝘂𝘀𝗶𝗻𝗲𝘀𝘀 𝗦𝗲𝗿𝘃𝗶𝗰𝗲𝘀 𝗟𝗶𝗺𝗶𝘁𝗲𝗱 𝗮𝗴𝗮𝗶𝗻𝘀𝘁 𝗧𝗵𝗲 𝗖𝗼𝗺𝗺𝗼𝗻 𝗦𝗲𝗿𝘃𝗶𝗰𝗲𝘀 𝗔𝗴𝗲𝗻𝗰𝘆 𝗳𝗼𝗿 𝘁𝗵𝗲 𝗦𝗰𝗼𝘁𝘁𝗶𝘀𝗵 𝗛𝗲𝗮𝗹𝘁𝗵 𝗦𝗲𝗿𝘃𝗶𝗰𝗲 [𝟮𝟬𝟮𝟯]

This case will be of great interest to suppliers and procurement professionals. Whilst the case was brought in Scotland, their procurement regulations are similar to those in England, both being borne out of the same EU directive.

The case was about the NHS National Health Services Scotland's procurement of a broadband network and associated services. The intended award was of a single supplier framework for use by certain public sector organisations, with a total contract value of £350 million across the initial 6-year term of the framework. The procurement process was conducted as a competitive procedure with negotiation.

Prior to the evaluation Capita, the claimant, had their bid rejected for being non-compliant. Capita challenged the rejection via the Courts, alleging breaches of the regulations. This hearing followed two previously unsuccessful attempts by the contracting authority to have the automatic suspension lifted. However, at full trial, Capita lost. The Court found that their bid had contained a pricing assumption, was not a fully priced bid and therefore was non-compliant with the instructions to tender. 

The consequences of such non-compliance would have been clear to an RWIND tenderer ("reasonably well informed and normally diligent"). As with other cases, this case confirms the RWIND tenderer is an objective standard, and evidence from the parties as to how they understood the documentation was disregarded. The Court found that the decision to reject was neither disproportionate nor irrational.