At a hearing on 26 March 2013, Mr Justice Coulson, sitting in the Technology and Construction Court of the High Court of Justice, ordered both early specific disclosure and pre-action disclosure following the Claimant’s application in the matter of Roche Diagnostics Limited v The Mid Yorkshire Hospitals NHS Trust [2013] EWHC 933 (TCC). Eversheds acted for the successful Claimant.

Background

The Claimant had been informed that it had been unsuccessful in a procurement run by the Defendant for the provision of laboratory services at three sites, in Wakefield, Dewsbury and Pontefract.

Upon discovering that its bid had been unsuccessful, the Claimant requested further information from the Defendant relating to the financial evaluation process. In response, the Defendant provided a number of spreadsheets, created after the evaluation process, as a means of seeking to explain how the financial evaluation had been carried out. Those spreadsheets contained errors and, upon being informed of those errors by the Claimant, further spreadsheets were provided by the Defendant. However, those additional spreadsheets seemingly also contained (different) errors.

Upon receipt of yet further material from the Defendant, the Claimant, losing faith that the evaluation had been carried out correctly, issued proceedings under the Public Contracts Regulations 2006 (as amended) (”the Regulations”). By that stage, and at the time of the hearing, no primary, contemporaneous documents had been disclosed to the Claimant, merely documents created by the defendant after the event. Following the Defendant’s refusal to provide such primary documents, despite the Claimant’s offering that a confidentiality ring be established, an application for early specific disclosure of material documenting the evaluation carried out was made under Civil Procedure Rule 32.12.

The Claimant also became aware that the defendant appeared to have entered into a separate, interim contract with Abbott Diagnostics Limited (“Abbott”) (the successful bidder in the above procurement) for the provision of laboratory services at one of the main centres to which the above procurement related, seemingly without a procurement process having been observed at all. The Claimant was also concerned as to how this interim contract had impacted on the Defendant’s evaluation of the main procurement. The Claimant sought a number of documents including a copy of the interim contract and an explanation as to how Abbott had been awarded the same. However, this basic information was not supplied by the Defendant, resulting in an application for pre-action disclosure under Civil Procedure Rule 31.16 being made for documents relating to the award of the interim contract.

Decision

Specific Disclosure

In considering the application in the context of previous decisions, including Alstom Transport v Eurostar International Limited [2010] EWHC B32 (Ch), Mr Justice Coulson ordered specific disclosure of the vast majority of material sought by the Claimant and outlined the following broad principles that should apply for early specific disclosure in procurement cases:

  1. 1. In general terms, and always subject to proportionality and confidentiality, the challenger ought to be provided promptly with the essential information and documentation relating to the evaluation process actually carried out in order that an informed view can be taken of its fairness and legality;
  2. The approach above is particularly important given the short time limits imposed by the Regulations on those who wish to challenge the award of public contracts;
  3. Nothwithstanding the general approach outlined at (1) above, each application must be considered on its own merits. A distinction is drawn between cases where a prima facie case has been made out by the Claimant and those cases involving unsuccessful bidders who, although aggrieved, are unable to point to grounds for disputing the decision by the Contracting Authority to award to a competitor;
  4. Any request for specific disclosure must be tightly drawn and sufficiently well focussed. Early specific disclosure applications should focus upon information/documentation relating to how the evaluation was actually performed; and
  5. Such applications must be decided by balancing the Claimant’s lack of knowledge of what went on during the evaluation process with the need to guard against such applications being used simply as fishing expeditions.

Pre-Action Disclosure

Regarding the Claimant’s application for pre-action disclosure, the Judge observed that, on the face of it, the Defendant needed to explain how it was that some of the laboratory services could be carried out by Abbott pursuant to a contract for which the Claimant had never had the opportunity to bid.

He concluded that, in order to help dispose fairly of anticipated proceedings or assist in resolving the dispute without proceedings having to be issued at all, the Defendant ought to provide to the Claimant basic documentation relating to the interim contract such as documents relating to the decision to invite Abbot to carry out this work, as well as the contract itself.

Comment

This Judgment acts as a reminder, and a warning, to Contracting Authorities.

It is not necessarily enough for a Contracting Authority to rely upon the content of a Regulation 32 (“Standstill”) Letter to successfully oppose such an application.

Once proceedings are issued and the Claimant can show a basic case, it is entitled to see documentation relating to how the evaluation process was carried out in order that an informed view can be taken as to its fairness and legality. It is not appropriate for the Contracting Authority to proffer only documents created after the issuing of proceedings in an attempt to show that its evaluation was carried out correctly. On that basis, those evaluating should be mindful that documents they create at the time of evaluation are disclosable and could be ordered to be disclosed at an early stage in proceedings.

Even before proceedings are issued, Contracting Authorities should consider carefully any request for information and/or documents from a bidder and whether the provision of such information and/or documentation may help deal with an issue swiftly and resolve a potential dispute without a formal claim having to be made.

Unsuccessful bidders can be encouraged by this decision, knowing that the Court is likely to assist them to move away (at least to a degree) from “the uniquely difficult position” of knowing that they have lost while the reasons for their failure remaining “within the peculiar knowledge of the public authority”.

Economic Operators should also be encouraged by the decision in relation to pre-action disclosure which confirms that Contracting Authorities are under a duty under the Civil Procedure Rules to disclose basic documentation without proceedings having to be issued. This duty to disclose runs alongside duties of disclosure under the Freedom of Information Act 2000 and the Environmental Information Regulations 2004.