18 February 2019
AbbVie Ltd v NHS Commissioning Board  EWHC 61 (TCC)
A challenge was brought by the American pharmaceutical company Abbvie Limited (“Abbvie”) against the NHS Commissioning Board’s (“NHS England”) Hepatitis C (“HCV”) drug procurement. The procurement, launched in spring 2018, is the largest NHS drug procurement ever undertaken, letting contracts worth nearly £1 billion over five years. The procurement was run pursuant to the competitive dialogue procedure to award up to three contracts and aimed to help England become the first country to eliminate HCV.
AbbVie, one of three UK suppliers of HCV medication, claimed in the Technology and Construction Court that the procurement procedure failed to comply with the equal treatment principle established in European case law and codified in regulation 18 of the Public Contracts Regulations 2015 (“PCR”). The principle is breached where comparable situations are treated differently or where different situations are treated in the same way, unless such treatment is objectively justified.
Abbvie contended that the evaluation methodology adopted by NHS England during the procurement exercise wase unlawful and should be set aside under PCR regulation 97. This contention centred around two aspects of the procurement, namely:
Margin of appreciation
As part of the general consideration as to whether the principle of equal treatment had been breached, Choudry J considered arguments made by Abbvie that there was no margin of appreciation available to NHS England when determining whether the principle had been breached. Choudry J held that the position was more nuanced than this, in that only once a breach of the duty of equal treatment had been established, was the contracting authority then not afforded any margin of appreciation to “explain away its treatment”. Even then, only where differential treatment falls outside of a margin of appreciation and/or is “arbitrary or excessive” rather than objectively justifiable, would the contracting authority have no further margin of appreciation and the treatment be unlawful.
Margin of discretion
Alongside the margin of appreciation, the margin of discretion available to contracting authorities when choosing award criteria was also considered. Choudry J held that “there can be little doubt that contracting authorities are afforded a wide margin of discretion in designing and setting award criteria.” Referencing (inter alia) Lion Apparel Systems Ltd v Firebuy Ltd  EWHC 2179 (Ch), the court confirmed that the fact that a scoring system favours a particular bidder, is not in and of itself, evidence of a breach of the equal treatment principle. As such, provided that the award model does not breach the equal treatment principle, the contracting authority has broad discretion as to the minutiae of the evaluation methodology.
Dummy Price Mechanism
Abbvie claimed the DPM was contrary to the equal treatment principle due to it conferring an unfair advantage on a bidder that was unable to actually provide drugs to treat the entire spectrum of differing genotypes. Choudry J held that due to Abbvie and MSD (the competing bidder whom Abbvie claimed benefited from the DPM) having differences in terms of their ability to treat certain genotypes, the DPM’s differential treatment of the bidders was in compliance with the equal treatment principle. As calculations submitted by both parties clearly demonstrated that Abbvie could have been successful under the DPM and beat MSD provided it bid the correct prices, no claim of unequal treatment was made out here.
The court also confirmed that irrespective of whether there was in fact a breach of the equal treatment directive, such unequal treatment would have been objectively justified. Choudry J found that the DPM was a proportional means of NHS England achieving its legitimate aims of increasing competition, achieving greater value, reducing cost, maximising health benefits and enabling like-for-like comparison of different bids.
Unmetered Access Model
Abbvie argued that the UAM operated unfairly in that it could result in one contractor supplying treatments above the number they had committed to treat, without receiving additional payment. As all bidders were in a comparable situation and were subjected to the same rules, it was held that this was not an example of unequal treatment. The fact that Abbvie believed it held a competitive advantage and that it would therefore have to treat more patients, was not evidence that its position was not comparable to that of MSD. To hold otherwise, Choudry J explained, would mean that “where one bidder had a competitive advantage over another, the tender rules would have to account for that difference so as not to fall foul of the rules.”
Further, Choudry J considered that Abbvie’s claim that MSD would commit to treat an unrealistic number of patients was held to be unfounded, as this was based on Abbvie’s misunderstanding of the tender requirements. In any case, the procurement had various in-built mechanisms to dissuade bidders from putting in unrealistic bids. In the alternative, the court held that any unequal treatment arising as a result of the UAM amounted to a proportionate means of achieving the legitimate aim of encouraging greater investment in elimination solutions. This was an important and legitimate aim of the procurement, as part of NHS England’s drive to eradicate HCV, and more than balanced the modest potential discriminatory effect on Abbvie.
This case provides a number of welcome outcomes for contracting authorities and utilities. It confirms that contracting authorities/utilities benefit from a broad discretion when designing and setting award criteria. Notably, the fact the model might favour a particular bidder over another does not automatically make the methodology unfair.
The case also confirms that the margin of appreciation when considering award criteria is not a black and white issue. Rather, only where the treatment is “arbitrary or excessive” will the contracting authority have no further margin of appreciation.
Finally, the fact that NHS England’s aims of achieving greater value, increasing competition, reducing cost, maximising desired outcomes and enabling comparison of inherently different bids/bidders were all deemed to be legitimate and were considered to outweigh the potential discriminatory effects on Abbvie, will provide further comfort to contracting authorities. Whilst contracting authorities should strive to avoid unequal treatment, the pursuit of legitimate aims may well provide a useful safety net.
Juli Lau is an Associate who with others in Sharpe Pritchard’s Procurement Team, advise on all aspects of public body procurement projects. Allan Owen is a trainee solicitor, who has worked in both the Procurement Team and the Outsourcing and shared services team. Sharpe Pritchard LLP is on the CCS General Legal Advice Services framework (RM3786) as a tier 1 provider (in consortium with PWC) and on the Wider Public Sector Legal Services framework (RM3788) and we work across all parts of the public sector.
This article is for general awareness only and does not constitute legal or professional advice. The law may have changed since this page was first published.
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