In a highly-anticipated judgment dated January 30, 2024, the Court of Appeal confirmed that in a procurement challenge under the Public Contract Regulations 2015 (PCR), a finding of a manifest error will not automatically mean that the error is ‘sufficiently serious’ to justify an award of damages.

This blog piece is a reduced version of our wider commentary on the case, which is available here.

Background

The procurement in question was for the provision of nationwide orthodontic services, although the challenge related to a contract for services in East Hampshire for a 7-year term worth £32.7 million (the Procurement). Braceurself was the incumbent, but its bid (one out of two) was unsuccessful, and the contract was awarded to a company known as PAL in these proceedings. The difference between the two bids was very close: PAL scored 82.5%, whereas Braceurself scored 80.25%.

Braceurself issued proceedings challenging the Procurement on a number of fronts, seeking to have the score corrected and the contract awarded to Braceurself. The issue of proceedings engaged the automatic suspension under the PCR. NHS England brought its application to lift the automatic suspension and was successful, primarily as Judge Bird found that “in this case damages

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