The High Court has rejected a legal challenge alleging that NHS England had breached procurement law when setting the rules for a major procurement of drugs for the treatment of Hepatitis C. This procurement exercise was described as the largest ever undertaken by the NHS and would lead to the award of up to three contracts, worth up to £1 billion over five years. The claimant, AbbVie, contended that aspects of the methodology laid down by NHS England infringed the principle of equal treatment. The Court disagreed, ruling that NHS England had acted within its margin of discretion when specifying its methodology for the procurement.
- The case underlines that contracting authorities enjoy a wide margin of discretion when setting the award criteria and methodology for a public procurement.
- A scoring methodology will not be found to infringe the principle of equal treatment simply because it will de facto be more favourable to certain bidders than others.
- Nonetheless, the increasing willingness of bidders to contest procurement procedures in court means that authorities must continue to take great care to ensure equal treatment and fairness when designing and implementing their evaluation methodology.
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