The facts of the case are as follows: SRCL was the main incumbent provider of the services (clinical waste collection and disposal, for pharmacies and GPs in Cumbria and NE England) under a framework agreement compiled and run by NHS England (NHSE). Each mini-competition under the framework agreement awarded a call-off contract for each region of the UK. The contract award for Cumbria and NE England carried out by electronic reverse auction was awarded to SRCL's competitor, HES. SRCL issued a legal challenge contending:
The judge gave short shrift to SRCL's arguments under contentions (2) and (3) and dismissed them. In the case of contention (1) - the matter central to the challenge - the judge ruled that the challenge failed because in the context of the competition and the complexity of that particular business, there was no ALT, just a business that made use of the advantages it had over competitors including setting a margin of profit which could justifiably be below that of its competitors - as the contracting authority concluded.
The case reminds us of the imperative contained within Regulation 69, namely, that where an ALT is apprehended, the contracting authority must investigate, and give the tenderer a chance to explain the perceived ALT. We also conclude that it is still quite difficult to mount a challenge under ALT.