Expert evidence allowed in a public procurement case on a very specific point – Mr Justice Fraser's decision in an interim application in the case of Bop-Me Ltd v Secretary of State for Health and Social Care (Rev 1) [2021] EWHC 1817 (TCC)

What?

Bop-Me is bringing a claim against the Secretary of State for Health and Social Care regarding its award of a contract for the supply of face masks to the NHS – one of the challenges relating to, as Mr Justice Fraser described it, "the use of the so-called "VIP Lane" for preferred suppliers".

The main claim goes to trial in April 2022, but Bop-Me asked at an early stage for the Judge's permission to rely on expert evidence.

Generally in procurement challenges, the parties are asking the Court to decide whether there has been a manifest error or unfairness in the procurement process. To consider this, the Court carries out a limited review of the public body's decision; it does not reach its own view on what the public body should have decided. For this reason, expert evidence is not usually required – but "there may be areas where the subject matter of the procurement is such that some expert evidence is required to assist the Court in understanding the technical subject matter, but these are rare."

The Courts will not require expert evidence on matters of interpretation and construction. Here the Judge had to consider:

  • whether expert evidence was necessary because of the complexity (either of the technical background or of the tender evaluation process);
  • if it was necessary, on what issues; and
  • whether there should be a joint report or if each party should instruct its own expert.

The Judge concluded that evidence from an expert was necessary and could assist the Court on one discrete issue only. For this, he allowed each party to call their own expert.

How?

The Claimant suggested it needed expert evidence on four issues.

Only one issue of the four was considered to be so complex/specialist so as to require expert evidence, which was:

What the contents of a testing report evidencing compliance with the relevant British Standard should include.

Bop-Me argues that there is no prescribed content of a testing report. The Judge recognised that, if Bop-Me was right on this assertion, a Court could not say what technical information should be included in a testing report, as the Court did not have any specialist knowledge of this. It would need an expert to assist the Court.

So what?

Before asking a Court to allow expert evidence in procurement proceedings:

  • Think very carefully about the issue(s) you think you need expert evidence on and why the Court would not be able to reach a decision on its own, without that expert. The Courts will still only allow expert evidence in procurement cases in limited circumstances.
  • Source your expert witness carefully – can they truly give an independent expert opinion on this issue and, if so, why / what makes them the right expert? If at trial it transpires that an expert does not have the necessary expertise, then the evidence may not be allowed resulting (as the Courts have said) in "any consequences that entails".
  • Check your expert witness understands that, if their evidence is allowed, they need to be able to answer the right question in the right way - it's the content of the expert evidence produced that matters, not just the expert's expertise. That expert needs to be able to assist the Court, clearly, concisely and independently.