“The requirement is split into 4 Lots: • Lot 1 East of England • Lot 2 Greater Manchester • Lot 3 Midlands East • Lot 4 Midlands West • Lot 1 East of England • Lot 2 Greater Manchester • Lot 3 Midlands East • Lot 4 Midlands West • There is no limit to the number of Lots that can be bid for; • You can bid for one or more Lots; • There are generic questions that apply for every Lot – if bidding for more than 1 Lot then bidders only need to complete the generic questions once; • There are specific questions that apply for each Lot. Bidders need to complete questions relevant to Lot(s) bidding for; • No discounts should be offered if bidding for multiple Lots. Each Lot is standalone; • Period of contract: 6 years with effect from01 April 2023 with an option to extend for an additional period of 36 months at the discretion of the Contracting Authorities and subject to satisfactory financial and contractual performance; • Closing date and time for Bidder clarification questions: By 12 noon,28 June 2022 ; • Closing date and time for return of tender; Before 12 Noon on12 July 2022 ; and • Variant bids will not be accepted. It is important to note that any late submissions will not be accepted. The tendering process will be conducted in accordance with the requirements of the Open Procedure, Regulation 27 of thePublic Contracts Regulations 2015 (PCR2015) as amended by thePublic Procurement (Amendment etc.) (EU Exit) Regulations 2020 No 1319). Tenders are invited subject to the Terms and Conditions set out within this ITT document. Please read the ITT and supporting documents very carefully as failure to comply with the requirements contained therein may invalidate your response. Please note that the information and documents contained within this ITT supersede all previous information provided with respect to this service provision. NECS is utilising an electronic tendering system to manage this procurement and communicate with potential bidders, accordingly there will be no hard copy documents issued, and all communications with the Contracting Authorities and NECS, including your tender submission, will be conducted via the e-Tendering portal.”
“The Contracting Authorities will only accept documents for tenders placed on the eTendering portal that are received electronically, unless explicitly stated otherwise in the ITT. Tenders submitted via the e-Tendering portal must be received in full prior to the closing time and date for receipt of tenders. Bidders are advised that uploading of large electronic files may take some time and as such bidders must allow sufficient time to fully transmit all files prior to the closing time and date for receipt of tenders. Immediately prior to submitting a tender electronically, the bidder must check the electronic files making up the tender for viruses, using current virus checking software and must remove all viruses from the files. In addition, the bidder must ensure that all files and documents are not password protected or restricted in anyway. Corrupt, unreadable and/or password protected files will not be discovered by the Contracting Authorities until after opening of tender submissions and at the start of the evaluation process. If the electronic files containing the tender are corrupt, contain a virus, or are unreadable for any reason, those files cannot be evaluated. The Contracting Authorities and NECS accept no responsibility for bidders misunderstanding instructions or incorrect use of the e-Tendering portal and shall not be liable or responsible for the loss, damage, destruction, or corruption of any tender, however caused. Faults in the bidder's system are not the responsibility of the Contracting Authorities and /or NECS and no extension to the closing time or date will be made under those circumstances.”
“3.1 The response documents should include the bidder’s name and all documents and supporting evidence submitted with the tender must refer to the organisation that will be signing the contract. 3.2 The Contracting Authorities may, at their own absolute discretion, extend the closing date and time for the receipt of tenders specified in ITT Schedule 5 Tender Timetable. 3.3 Any extension granted under point 3.2 will apply to all bidders. 3.4 Bidders must submit their final tender by the closing time and date as specified in ITT Schedule 5 Tender Timetable. Tenders may be submitted at any time before the closing date and amended as many times as necessary before the deadline. Tenders received before the deadline cannot be opened until after the deadline for receipt of tenders. Bidders are reminded that they will need to re-submit a tender after making any amendments to a tender that had previously been submitted. 3.5 The Contracting Authorities will not consider any tender response received after the stated deadline and failure to submit a response by the deadline will result in the exclusion of the bidder from participating any further in this procurement. … 3.10 Bidders must note in respect of electronically transmitted tenders, that uploading of large electronic files may take some time and as such they must allow sufficient time to fully transmit all files prior to the closing time for return of tenders. 3.11 It is the bidders’ responsibility to ensure that their tender has been successfully submitted. Tenders which are not submitted in accordance with the instructions detailed above, prior to the stated deadline will not be visible to the Contracting Authorities, and therefore cannot be taken further within the procurement process.”
“7.1 Bidders acting in contravention of the provisions set out in the ITT or any other information/instruction provided by the Contracting Authorities, will, at the sole discretion of the Contracting Authorities, be excluded from further participation in this procurement.” … 14.1 The Contracting Authorities reserve the right to reject or exclude a bidder and/or its collaborative members where: 14.1.1 A tender is completed incorrectly, is materially incomplete, or fails to meet the submission requirements which have been notified to bidders; 14.1.2 The bidder and/or its collaborative members are unable to satisfy the terms of Regulation 57 of the PCR2015(SI 2015 No 102) at any stage during the tender process; 14.1.3 The bidder and/or its collaboration are guilty of material misrepresentation in relation to its application and/or the process; 14.1.4 The bidder and/or its collaborative members contravene any of the Terms and Conditions of the ITT; 14.1.5 There is a change in identity, control, financial standing, or other factor impacting on the selection and/or evaluation process affecting the bidder and/or its collaborative members; or 14.1.6 The bidder and/or its collaborative members submit a variant bid.” 14.1.1 A tender is completed incorrectly, is materially incomplete, or fails to meet the submission requirements which have been notified to bidders; 14.1.2 The bidder and/or its collaborative members are unable to satisfy the terms of Regulation 57 of the PCR2015(SI 2015 No 102) at any stage during the tender process; 14.1.3 The bidder and/or its collaboration are guilty of material misrepresentation in relation to its application and/or the process; 14.1.4 The bidder and/or its collaborative members contravene any of the Terms and Conditions of the ITT; 14.1.5 There is a change in identity, control, financial standing, or other factor impacting on the selection and/or evaluation process affecting the bidder and/or its collaborative members; or 14.1.6 The bidder and/or its collaborative members submit a variant bid.”
‘More specifically, this means that the award criteria must be formulated, in the contract documents or the contract notice, in such a way as to allow all reasonably well-informed and normally diligent tenderers to interpret them in the same way.’
"It is important to note that any late submissions will not be accepted."
“Contracting authorities shall treat economic operators equally and without discrimination and shall act in a transparent and proportionate manner.”
‘Contracts shall be awarded on the basis of criteria laid down in accordance with regulations 67 to 69, provided that the contracting authority has verified in accordance with regulations 59 to 61 that all of the following conditions are fulfilled:— (a) the tender complies with the requirements, conditions and criteria set out in the contract notice or the invitation to confirm interest and in the procurement documents, taking into account, where applicable, regulation 45;’
“Where information or documentation to be submitted by economic operators is or appears to be incomplete or erroneous or where specific documents are missing, contracting authorities may request the economic operators concerned to submit, supplement, clarify or complete the relevant information or documentation within an appropriate time limit, provided that such requests are made in full compliance with the principles of equal treatment and transparency.”
‘The position is the same under the 2014 Public Procurement Directive which, as we have seen, states expressly in Art.56(1) that tenders must comply with stated requirements to be accepted. The question arises, however, as to whether there are any exceptions to the requirement to reject late tenders. It is suggested that, whilst there is generally no discretion to do accept a late tender, it is arguable that there is a duty to do so, at least prior to the award decision being made, when the tender is late because of the fault of the contracting authority itself. In Scan Office Design SA the Court ruled that it was unlawful for the Commission to accept the late tender even though the Commission had erroneously sent the specifications to the tenderer’s Italian, rather than Belgian, branch. However, the court did not specifically address the argument that this error justified the Commission’s action and its conclusion may have been based on the fact that, given ongoing communications between Scan and the Commission, the error caused no prejudice. In cases in which prejudice does exist it would, it is submitted, be acceptable to consider a tender that is late. There is no violation of equal treatment since a tenderer who has been misled, or affected by some other exceptional circumstance, is not in a comparable situation to one who has not. In the domestic High Court case of Leadbitter Richards J, without referring to the Scan case, suggested that there “may be circumstances” where proportionality will “exceptionally” require acceptance of the late submission of the whole or part of a tender “most obviously” when it results from fault on the part of the procuring entity. It is important to recall here that the contracting authority has a discretion to extend the deadline before its expiry to deal with situations of difficulty, whether of individual tenderers or more general (such as adverse weather) and is even required to extend it in certain cases: this issue was considered at paras 7-133—7-134 above. This makes it less necessary to consider late tenders in practice.’
‘As to proportionality, the judge acknowledged the "harsh economic consequences of the inability to tender" as expressed at paragraph 70. However, he gave "weighty reasons against the grant of an extension". I agree with those reasons. The decision not to permit an extension was not, in the circumstances, disproportionate. I have already read paragraph 70 of the judgment where the reasons are set out. These are put as an objective test, but it is clear, in my judgment, that the relevant considerations were kept in mind by the respondents. I also agree with the approach of David Richards J in Leadbitter and I accept that it reflects the earlier authorities. A deadline is a necessary part of a tendering process. The deadline was plainly stated in readily accessible documents. There is no fault by the respondents; they needed to be conscious of their duty to treat tenderers and potential tenderers equally and to avoid suggestions of favouritism towards a particular party. The failure to tender arose from a single and very unfortunate failure, though against the background of a failure by Mr Azam and his firm to monitor what would seem to be documents sensible to be monitored by a firm doing this type of work, it was the failure to take action on the receipt of the letter of 23 December. The need for an extension could not be attributed to any fault on the part of the respondents or to any factor outside the control of the appellants.’
‘This was, said Mr Nicholls, and I agree, not a case in which the overlooking of the deadline was anyone's fault but Azam's. It was a straightforward and wholly unexceptional case in which a proposing bidder had simply overlooked the deadline. If an extension ought to have been granted in this case, then Mr Nicholls said it would be difficult to see why it should not be granted to anyone who overlooked the deadline and sought an extension, an approach that would effectively emasculate the deadline condition. Moreover, the vice in Azam's case was that it necessarily involved a violation of the principle of equality between tenderers required by the 2006 Regulations. To extend Azam's time to present its bid in the unexceptional circumstance of its case would be to give it an advantage denied to all other tenderers. There might, for example, Mr Nicholls said, be some who had rushed the presentation of their bid in order to meet the deadline but who could have improved it had they had an additional week. Moreover, in an oversubscribed competition such as this one was, in which there would have to be a proportionate scaling down of the awards of "new matter starts" to the successful bidders, the introduction of a late bidder into the system would have the potential to affect those awards in a way which would not otherwise arise. I would accept Mr Nicholls' submissions as to why on the facts of this case there was nothing disproportionate about the Commission's refusal to change the tender rules to accommodate the unexceptional circumstance that a particular proposing tenderer had, through his own carelessness, missed the deadline. Any different decision by the Commission would, I consider, have been unprincipled and would have involved an unjustified violation of the requirement of equality of treatment imposed by the Regulations’
‘About 11.40am (20 minutes before deadline), our bid was complete and ready to be submitted, ie all answers and associated mandatory attachments for all lots were all uploaded. Upon pressing 'Submit Return', the portal stated that there was an issue with Document 10 SPD Questionnaire Part 1 and 2. I believe that portal suggested that there was an issue with said attachment and that I remove the current attachment, then upload again, which I did. I am sorry, I did not take a screenshot at that particular error message. I then pressed 'Submit Return' once again, the portal then stated that there was a problem with SV02d, again I did not or take a screenshot of the exact error, due to the deadline closing. I removed attachment SV02d, then re-uploaded the same document. I attempted again to submit the tender, the portal stated that there was another issue with SD04d (mandatory attachment), which I removed and then reuploaded. However SD04d did not appear in the portal as being successfully uploaded, see pages 6 & 7 of the screenshots as the button remained red. When I attempted again to upload SD04d, the portal then stated "The file you are trying to upload already exists. Please try again", see page 6 of the screenshots. I attempted to submit the return, but the portal then stated "All mandatory tender documentation placeholders must be filled before submitting this return", see page 7 of the screenshots. At 11.54am (6 minutes before deadline), I sent a message to the Commissioners (and procurement) via the portal to seek your assistance about this issue and also to notify you that I had this problem because our bid was complete and ready to be submitted. There was no time to call the portal helpdesk. I cannot recall how many more times I tried to upload SD04d (after sending the message at 11.54am), I think it was around 3-4 times. About 11.57am, I thought it would be wise to take screenshots of the portal to evidence that: a. our bid was ready for submission, ie all questionnaires had been answered and all mandatory attachments had been uploaded (with the exception of SD04d) and b. to evidence the error message associated with attachment SD04d that prevented me from submitting our bid before the 12pm deadline. I assume that the portal had an audit log of this too?’
‘All mandatory Tender document Placeholders must be filled before submitted this return’
‘Upon reviewing the20 July 2022 letter and the audit log in combination I identified that the attachments in support of Lots 1 – 3 had been uploaded correctly, but that for Lot 4 the attachment 'SD04d' had been uploaded but 'SV01d' had not been. From this I suddenly realised that I must have uploaded attachment 'SD04d' into the placeholder for question 'SV01d'. It was only at this point that I realised what the error message meant: that a file had been uploaded to the wrong place for one of the Lots.’
‘Please find attached the audit I did showing the documents uploaded/removed and also the list of attachments confirmed by Intend which is cross matched with the audit. I have also attached a list of all of the placeholders for the project. Below is the details of the documents which were either not uploaded or the wrong documents uploaded. Missing mandatory attachments Lot 4 - AppendixSD04d_MW_Engagement_&_Comms_Plan_Lot4_Inhealth,pdf - Appendix WF01 – Proposed Midlands West SHIS Organisational Chart – Inhealth.pdf Wrong mandatory attachments Generic - ITT Document 1 Declaration NHS876 - ITT Document 2 Form of Tender Non Collusion NHS876 - ITT Document 3 Conflict of Interest NHS876 - ITT Document 4 Confirmation of Questionnaire Declarations NHSE876.’
‘but for human error in uploading documents to incorrect placeholders, and an inability to deal properly with clear error messages driven principally by the failure on the part of the Claimant to have commenced the submission process with enough time in hand prior to the deadline, the Portal would have allowed the Claimant’s bid responses for each of Lots 1 to 4 into the Procurement.’
‘52.1 The design of the Portal and/or the Exclusion Decision penalises bidders for a single error made in its response to one Lot by precluding the submission of its bids for any other Lots. This is contrary to the contrary requirement of proportionality. 52.2 There was no clear explanation in the ITT that an error in respect of one Lot would preclude the submission of any or all bids – contrary to the preclude any – contrary requirement of proportionality. 52.3 The design of the Portal and/or the Exclusion Decision operates to preclude the consideration of the Claimant’s validly uploaded bid responses for Lots validly uploaded bid responses for Lots 1, 2 and 3, contrary to the requirement of equal treatment. 52.4 The design of the Portal and/or the Exclusion Decision discriminates against bidders who have chosen to bid for more than one Lot against by operating to treat an error made in uploading one Lot as a reason for refusing to allow bids for all other Lots into the Procurement. 52.5 The design of the Portal and/or the Exclusion Decision constitutes a breach of an implied contract. In particular, as documents requested in support of Lots 1, 2 and 3 were “uploaded to the e-Tendering portal” (as required under Stage 1 of the evaluation process: see para 33 above). [sic]’
‘(1) in a manner which was manifestly flawed and irrational; (2). so as to take into account irrelevant considerations, including: a. the fact that another bidder was able successfully to upload its tender submission without encountering an error message or other issues b. that inclusion of [IIL’s] bids could represent a breach of the PCR 2015. In particular, bidders would not thereby be treated differently or discriminated against because the [IIL’s] bids would be unaltered from the form it was when uploaded to the Portal. (3) by failing to take into account relevant considerations, including the considerations at paragraph 56 above, and a. the fact that [the Decision] will reduce competition make it less likely that [NHS England] will identify the Most Economically Advantageous Tender. b. the fact that the [IIL] previously encountered a similar issue in previously uploading a document in time in similar procurement carried out on behalf [NHS England]where the [IIL’s] bid was not excluded.’