CCG staff ‘crossed the line’ in ‘manipulating’ contract award

The three CCGs (Gloucestershire, Bath and North East Somerset, Swindon and Wiltshire, and Bristol, North Somerset and South Gloucestershire) were described by a judge as being guilty of “defending the indefensible” after they were taken to court by a tech company which successfully argued it had been unfairly treated.

The fines will be paid by the integrated care boards which have succeeded the CCGs.

According to the judgment (see below) by the Technology and Construction Court, several CCG staff knew their conduct was “improper”. This conduct included lobbying on behalf of their favoured company, and only inviting that supplier to enter a “mini-competition” to secure the contract.

CCG staff lobbied ‘tirelessly’ for company

The three-year contract in question was to provide software which would support clinical advice and guidance services for doctors working in the three integrated care systems covered by the CCGs (now integrated care boards).

Cinapsis was the only company invited to tender. It was duly awarded the contract in March 2021. This led rival Consultant Connect taking legal action against the CCGs.

According to the judgment, the contract award followed “tireless lobbying” by John Turp, who worked for Gloucestershire CCG, in favour of Cinapsis.

Another staff member at Gloucestershire CCG, Malcolm Gerald, was also described by the judge as “crossing the line” with his conduct.

Prior to procurement, Dr Gerald was already “strongly partisan” towards Cinapsis, having given supportive quotes on the company’s website and speaking at an event it had sponsored.

The court also heard Mr Turp breached confidence rules by sending information from Consultant Connect to Dr Gerald, who subsequently advised Cinapsis how to pitch for the contract.

The CCGs took no “appropriate measures… to prevent, identify and remedy these conflicts of interest,” the court found.

In his verdict, Mr Justice Kerr said he did not find the two men’s motivations “dishonourable”. They believed what they were doing was “best for the NHS in their area”, he added.

However, he said Mr Turp regarded the need for a “fair and lawful procurement” as a “bureaucratic nuisance” while Dr Gerald’s “disdain for a process of objective comparison between suppliers displayed arrogance”.

‘Considerable organisational bias’

The judge also found there was “considerable organisational bias” in favour of Cinapsis, which had already run a pilot programme with Gloucestershire CCG.

This was evident in November 2020 when three companies – Consultant Connect, Cinapsis, and System C – were invited to give presentations as part of a market engagement exercise.

The CCGs used the event to score the companies suitability to deliver the contract. However, some of the evaluators had already discussed their preference for Cinapsis after being given a presentation by Dr Gerald about the company the day before.

One evaluator, Shanil Mantri, of BANES CCG, wrote in an email “[f]ingers crossed [NHS Bath] choose Cinapsis tomorrow”.

Shortly after this event, Cinapsis was invited to submit “indicative costs” which were described as “[h]ot news!!!” by Mr Turp – and the CCGs subsequently agreed to contract Cinapsis using a clinical communications procurement framework set up by NHSX.

However, this framework had been set up to help the NHS eliminate its use of pagers. The judge found the CCGs chose this process “with the intention of artificially narrowing competition and/or the intention of unduly favouring or disadvantaging certain economic operators”.

The misuse of the framework was also evident when Cinapsis “completely altered” its charging basis. The company’s pricing “substantially increased” from its indicative costs, leading to further negotiation between the company and the CCGs. Dr Gerald lobbied the CCGs in favour of the company’s financial terms, in an effort to prevent the deal going “pear-shaped”, according to his own emails.

Consultant Connect had an expiring contract with BANES CCG. Shortly after the new contract was awarded to Cinapsis, Consultant Connect was told its deal would not be renewed. Consultant Connect brought the legal action against the CCGs the following month.

In March this year, Bristol, North Somerset and South Gloucestershire CCG ended its contract with Cinapsis after only one year of activity.

The judge ordered Cinapsis’ contract to be shortened so that it expires in January 2023 instead of March 2024, so that a new procurement can be carried out. 

He also issued a “civil penalty” to the ICBs, which has been broken down as follows:

• Gloucestershire ICB fined £10,000;
• Bath, North East Somerset, Swindon and Wiltshire fined £8,000; and
• Bristol, North Somerset and South Gloucestershire fined £4,000.

The ICBs will also have to pay damages to Consultant Connect. This sum has not been set out yet by the judge. 

The judge said: ”I return to the broad character of what happened: a manipulation of the process to ensure that Cinapsis won the contract unless it should seek to charge too much. That description is not unfair and clearly points to damages being justifiable.”

The ICBs said they were “disappointed in the court’s ruling” and “committed to learning from this case”.

‘Rigged procurement’

Consultant Connect chief executive Jonathan Patrick told HSJ the court’s findings were “shocking”.

“We did all we could to avoid this going to court,” he said. “This was a rigged procurement due to an inappropriate relationship between commissioners and a supplier, who then ramped up prices to exploit the situation.”

He continued: “Patients and the NHS get the best deal when commissioners buy things using fair and open competition. This judgment confirms there is no place for improper procurement in the NHS.”

HSJ asked the ICBs if any action had been taken against the staff criticised in the judgment, but the ICBs declined to answer.

A spokesman for the three ICBs said: “This has been a difficult process for all parties. We remain focused on ensuring high quality advice and guidance services that bring benefits to the people we serve.”

In a statement, Cinapsis said: ”We weren’t asked to provide evidence during this trial, therefore it wouldn’t be appropriate to comment on the details.

”However, at no point during the procurement process were we informed that we were the sole bidder and we acted in good faith throughout. As an organisation, our unwavering priority is always to provide the best, safest and most effective solutions to the NHS.”