An NHS body in Scotland has been granted permission by a court to proceed with a framework agreement following a legal challenge by a supplier.
The Common Services Agency, also known as NHS National Services Scotland (NSS), responsible for the procurement of medical equipment, told Scotland’s Court of Session that delaying the framework for the supply of implantable electronic heart devices would cost £20,000 a week.
Judge Lord Tye ruled the case brought by Boston Scientific Ltd was “very weak” and he granted an interim order allowing the framework to go ahead.
NSS issued an invitation to tender, divided into 11 lots, in February 2016. Boston Scientific bid for 10 lots and was successful in three.
Boston Scientific argued the tender process to join the framework was flawed and it sought to have the decision to appoint other firms set aside or damages of £3m. The challenge meant the framework was halted unless court proceedings were completed or an interim order was made.
The company claimed its position as “the market leader”, with its products having a superior battery life, was not properly taken into account, and that NSS breached regulations around providing reasons why a tender was not successful.
Lord Tye said he was not persuaded by the Boston Scientific’s arguments.
“The pursuer’s argument proceeds upon the basis that it is a matter of indisputable fact that their products have significantly greater longevity than those of the successful tenderers, and accordingly that any outcome which did not place them as top scorer on longevity must ipso facto demonstrate that an error has been made. In my view, that is not the correct starting point,” he said.
“Longevity scores attracted a weighting of only 20%. It is apparent from the results… that the pursuer scored poorly on price, and I am not satisfied, on present information, that a higher score for longevity to the pursuer (albeit presumably resulting in lower scores for longevity to other tenders) would be likely to have had the effect of elevating the pursuer into the top three scorers for any or all of the lots in respect of which it was unsuccessful.”
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