A logistics firm is pressing on with its legal action against NHS Supply Chain after rejecting the offer to be readmitted into the procurement for a £4.4bn contract, writes HSJ.
Wincanton was excluded from the procurement process in March 2024 before bidders were shortlisted.
NHSSC has already admitted the process it previously used was unlawful, and that Wincanton should be readmitted and allowed to proceed to the final stage of the procurement.
However, the company has rejected “the readmittance proposal” and is continuing its case for damages.
Wincanton told the court it had “been denied the opportunity to compete with the [other] bidders… on an equal or fair basis”. Following the company’s expulsion from the process, it had “disbanded the project team responsible for the procurement and notified its third-party service providers and consultants that its bid had been excluded”.
Therefore “personnel and resources were accordingly re-allocated and are no longer available to the claimant for the purposes of seeking to assemble a new bid team and support structure”.
Wincanton is the second firm to bring a legal challenge against NHSSC in this procurement. Earlier this month HSJ reported that Unipart, the agency’s incumbent logistics supplier, had brought a claim in the High Court also asserting NHSSC’s decision to exclude it from the shortlist was unlawful.
The procurement process for NHSSC’s new logistics partner began in June 2023. By the end of March 2024 NHSSC had whittled the initial four bidders down to two. One is GXO, according to court papers filed by NHSSC, and the second is believed to be DHL.
Wincanton’s bid failed because it had scored 2 out of 5 in its response to one of the technical questions used to assess bids in the initial stage of the two-stage procurement process. The company’s claim asserts the scoring of the bid was unlawful and that NHSSC’s evaluation had been carried out in such a way as to help certain, but unnamed bidders, make the shortlist for the final stage of the procurement.
NHSSC denied it had carried out the evaluation to favour specific bidders, but did admit its evaluation of Wincanton’s response to a specific technical question had been unlawful
NHSSC also acknowledged that had it followed a lawful process Wincanton would have gone through to the final stage of the procurement. It said the decision to exclude the company “should be set aside” and that Wincanton was “entitled to progress to the negotiation stage of the procurement”.
NHSSC argued that its offer meant Wincanton “has not been deprived of any opportunity, has not suffered and does not risk suffering any loss of damage in relation to the opportunity to be awarded the contract” and therefore is not due any damages.
An NHSSC spokesperson said: “Whilst we do not comment on ongoing litigation, Wincanton continue to have an opportunity to participate in the procurement process as it continues.”
Wincanton declined to comment.
Source: HSJ
Date: 25 June