On 29 April 2015, the English High Court in an usual move agreed to applications made by the claimant (an unsuccessful bidder) for early specific disclosure of certain tender documentation by the defendant contracting authority in a public procurement dispute.
The facts of this case were that the Environment Agency (EA) conducted a new procurement procedure for a temporary flood barrier system in 2014. Geodesign Barriers Limited (GBL), who was the incumbent supplier, submitted a tender. However the EA informed GBL that they had been unsuccessful. The winner was competitor, Inero AB.
GBL challenged the EA’s procurement decision under the Public Contracts Regulations 2006 (the 2006 Regulations) alleging that Inero’s system did not comply with the mandatory performance specification set out in the tender documents and furthermore that EA had wrongly evaluated and scored Inero’s tender in relation to their own.
In response the EA contended that even if there were errors in their assessment of Inero’s bid this would not have made any difference to the outcome for GBL. There were four other bidders that scored more highly than GBL. Therefore, GBL had no chance of winning the contract and had not suffered any loss consequent on any breach of the 2006 Regulations.
Following this, GBL made applications to the High Court seeking specific early disclosure of written tender evaluation documents from EA to disclose the identities of the other four bidders and permission to amend its particulars of claim following such disclosure.
On 29 April 2015, the High Court ordered the EA to provide early specific disclosure of the tender evaluation documentation held by them. However, the EA were insistent that no contemporaneous written tender evaluation documents existed. The Court noted that if this were so it would be highly unusual. It raised awkward questions for the contracting authority about the transparency and clarity of their procurement exercise. The Court also emphasised that there would be serious consequences if the EA identified any such documents for disclosure in the future.
Given the nature of GBL’s case and EA’s defence, the High Court ordered disclosure of the documents into a confidentiality ring. The High Court considered that the documents were directly relevant to the pleaded case as the EA argued that GBL would not have won the tender in any event. The Court considered that GBL should be able to assess as soon as possible whether the other bids were compliant.
However, the High Court ruled against GBL in that it considered it was not necessary for the EA to disclose the identity of these other tenderers.
See: Geodesign Barriers Ltd v The Environment Agency  EWHC 1121 (TCC).