Requests for specific disclosure in procurement cases: will the floodgates open?

03 July 2015


The High Court has handed down a ruling on an application for specific disclosure, which could have wide implications for those making or responding to such disclosure requests in the early stages of procurement disputes.

Background

The dispute - Geodesign Barriers Ltd v Environment Agency - stems from a process to procure temporary flood barrier systems conducted by the Environment Agency (EA) between October and December 2014.

The procurement was undertaken in a two-stage evaluation process. The first stage centred on verification of a tender's compliance with a "mandatory performance specification". The second stage scored tenders on a 60/40 price to quality split. The successful bidder was Inero AB (Inero) with the claimant Geodesign Barriers Ltd (Geodesign) ranked sixth out of eight bidders.

Information disclosed by the EA revealed that Geodesign and Inero were equal on the qualitative aspects of the evaluation but the Geodesign bid fell well short on pricing.

Geodesign consequently challenged the procurement procedure alleging a manifest error in the evaluation of tenders, alleging specifically that:

  • the Inero solution should not have passed the first stage of the evaluation on the basis that it did not meet the prescribed mandatory performance specification;
  • the price and quality scores awarded to Inero failed to take into account the deficiencies and whole life costs of the solution; and
  • in the absence of any other higher bidders which are genuinely compliant with the specification, Geodesign should have been awarded the contract and/or the tender or evaluation process should be re-run.

The subsequent automatic suspension was lifted by agreement between the two parties, leaving Geodesign with a claim for damages. This ruling related to an application made by Geodesign for specific disclosure of tender evaluation documents including the identity of the four unsuccessful bidders who outscored its submission.

The judgment

The initial comments of Mr Justice Coulson's judgment expose the challenges that Geodesign's case faced at the substantive hearing. In particular, they highlighted

  1. the difficulty in arguing the existence of a manifest error when the EA was evaluating bids against its own mandatory performance specification (in light of the EA's experience and vast technical expertise), and
  2. the "tall order" facing Geodesign in demonstrating that it was not only Inero's bid that was non-compliant, but also that of the other four higher-ranked bidders.

Theoretically, therefore, the EA should have had a strong case. However, when requested, the EA had been unable to produce any substantive contemporaneous notes or evidence relating to the crucial matter of whether tenders met the requirements of the performance specification.

The judge described the lack of a 'Tender Evaluation Report' as 'extraordinary' and remarked "the absence of a contemporaneous Tender Evaluation Report of any kind in this case raises a significant question mark as to the transparency and clarity of the procurement exercise...how can any of the tenderers be certain that there has been a fair and transparent process...". This fundamental flaw in the EA's position clearly served place Geodesign's case for disclosure on a better footing.

And so the court moved to consider the specific disclosure requests made by Geodesign, including:

  • evaluation, technical or other documents drafted by the EA on assessment of the bids;
  • email correspondence between the evaluators and procurement officer; and
  • documents comprising the bids from the four higher scoring bidders, and their identities.

Aside from the bidders' identities, the judge indicated a willingness to order disclosure of much of the requested information; however he was unable to do so due to the EA's insistence that no formal documents relating to the assessment of the bids existed. This assertion was supported by a sworn statement to this effect from the EA's solicitor.

On that basis, the court held that all contemporaneous documentation relating to the evaluation meetings, scoring emails between the evaluators/procurement officer and (especially significantly) the bid documents of the other bidders be disclosed, although not their names.

The disclosed documents were to be made subject to a "confidentiality ring" to which only external legal advisors from both sides were allowed access. Additionally, Geodesign was permitted to involve an expert to advise on technical compliance issues.

Comment

This judgment provides a useful indication of the approach the court will take when presented with cases where unsuccessful tenderers cannot conclusively establish whether a particular outcome has been lawfully reached by a contracting authority.

The lack of a tender evaluation report or even proper contemporaneous evaluation records was the determining factor in persuading the court to order far-reaching early disclosure of key procurement documentation including internal email correspondence, evaluators' notes and even the contents of other unsuccessful bidders' tenders.

In Roche Diagnostics Limited v Mid-Yorkshire Hospitals NHS Trust [2013] EWHC 933 (TCC) at para. 20, Mr Justice Coulson had notably referred to an unsuccessful tenderer who wishes to challenge the evaluation process as being in a uniquely difficult position:

..."he knows that he has lost, but the reasons for his failure are within the peculiar knowledge of the public authority".

Such a tenderer may take heart from this decision. While this may perhaps be regarded as an extreme case due to what appears to be a failure on the authority's part to document its evaluation procedure with any degree of robustness, it does indicate that the courts are prepared to broaden the extent of what is disclosable where it is necessary to allow a challenger to form an informed view of the merits of its case.

For contracting authorities, this ruling should be considered in the light of the new requirements set out in Regulation 84 of the Public Contracts Regulations 2015. Contracting authorities are now obliged to document key stages and decisions undertaken during a procurement procedure in the form of a written report. This report can be requested by the Cabinet Office and the Commission.

Therefore contracting authorities should take care to ensure full compliance with the Regulation 84 requirements. Any failure to do so is likely to result in the risk of orders for early disclosure of a welter of documentation generated by the procurement process itself.


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