Commissioning

07.11.18

NHS England in legal battle with American firm over medicine procurement

An American pharmaceutical company has launched a legal challenge against NHS England over a procurement process seeking suppliers for ground-breaking hepatitis C treatment.

The legal proceedings were launched by the American firm Abbvie in London’s Technology and Construction Court during the summer, claiming that NHS England breached its duty to treat all bidders fairly.

The procurement was launched in spring in a bid to lower the cost of hepatitis C drugs which are manufactured by Abbvie, MSD Pharmaceutical, Janssen Pharmaceutica, and Gilead Sciences.

Back in January, NHS England asked businesses in the pharmaceutical industry to help make the UK the first country in the world to eliminate hepatitis C through its next round of procurement.

Hepatitis C leads to around 400,000 deaths a year and affects around 160,000 people in England, and NHS England says it believes it can go further with its treatment and eliminate it five years earlier than the World Health Organisation’s goal of 2030.

The court documents are heavily redacted due to commercial sensitivity, but say the claimants allege that the NHS commissioning board breached regulations in its tender process.

NHS England is legally required to comply with certain regulations and directives in its tender process, which means it must conduct the process consistently with the principles of equality of treatment, transparency, non-discrimination, and good administration, and it must award the contract to the most economically advantageous tenders.

The claimant alleges that the NHS broke these regulations and that there was unlawful use of electronic auction in competitive dialogue procedure, and wants the NHS to set aside the tender process or modify it to remedy the parts considered unlawful.

The public body contested this and said there was no prohibition of using an auction of any kind and, defending its process, the NHS commissioning board said the claim “fails at the outset” because it wasn’t made in time.

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Dominic Lipinski/PA Wire/PA Images

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