This article is an excerpt from The Art of Tendering: A Global Due Diligence Guide, which is available for purchase.
In its February 2019 decision in Serco Ltd v Secretary of State For Defence, the England and Wales High Court – Technology and Construction Court ordered the government to disclose evaluation records to a losing bidder in the course of legal proceedings initiated by that bidder. The case dealt with a dispute over a procurement process conducted by the Ministry of Defence for a 12-year fire and rescue services contract valued at £1.1 billion. The plaintiff was a losing bidder that challenged the evaluation process and, as part of pre-trial discoveries, sought the government’s evaluation records. While the government resisted disclosing these records, the Court ordered it do so, noting that in addition to general disclosure rules, a series of additional well-established transparency principles apply to the disclosure of public procurement records:
The second element is, so far as procurement is concerned, there are separate identifiable principles in relation to disclosure. These are most usefully summarised in a decision of Coulson J (as he then was) in 2013 called Roche Diagnostics Ltd v The Mid Yorkshire Hospitals NHS Trust, [2013] EWHC 933 (TCC). The judge dealt at [15] through to [19], both with the provisions of the CPR for disclosure under CPR 31.12, and the approach in procurement to disclosure. Different cases had considered this in the context of procurement, which the judge identified and summarised, and then at [20] he said the following:
In my view, the following broad principles apply to applications for early specific disclosure in procurement cases:
(a) An unsuccessful tenderer who wishes to challenge the evaluation process is 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. In general terms, therefore, and always subject to issues of proportionality and confidentiality, the challenger ought to be provided promptly with the essential information and documentation relating to the evaluation process actually carried out, so that an informed view can be taken of its fairness and legality.
(b) That this should be the general approach is confirmed by the short time limits imposed by the Regulations on those who wish to challenge the award of public contracts. The start of the relevant period is triggered by the knowledge which the claimant has (or should have) of the potential infringement. As Ramsey J said in Mears Ltd v Leeds City Council [2011] EWHC 40 (QB), “the requirement of knowledge is based on the principle that a tenderer should be in a position to make an informed view as to whether there has been an infringement for which it is appropriate to bring proceedings”.
(c) However, notwithstanding that general approach, the court must always consider applications for specific disclosure in procurement cases on their individual merits. In particular, a clear distinction may often be made between those cases where a prima facie case has been made out by the claimant (but further information or documentation is required), and those cases where the unsuccessful tenderer is aggrieved at the result but appears to have little or no grounds for disputing it.
(d) In addition, any request for specific disclosure must be tightly drawn and properly focused. The information/documentation likely to be the subject of a successful application for early specific disclosure in procurement cases is that which demonstrates how the evaluation was actually performed, and therefore why the claiming party lost. Other material, even if caught by the test of standard disclosure, is unlikely to be so fundamental that it should form the subject of a separate and early disclosure exercise.
(e) Ultimately, applications such as this must be decided by balancing, on the one hand, the claiming party’s lack of knowledge of what actually happened (and thus the importance of the prompt provision of all relevant information and documentation relating to that process) with, on the other, the need to guard against such an application being used simply as a fishing exercise, designed to shore up a weak claim, which will put the defendant to needless and unnecessary cost.
I would emphasise the passage in sub-paragraph (a) which says, “The challenger ought to be provided promptly with the essential information and documentation relating to the evaluation process”. That is the documentation that was sought as long ago as June 2018, that is the documentation which is the subject matter of the agreed order in the schedule, and that is the documentation which, in my judgment, there can be no sensible grounds for the defendant not to have disclosed. This applies not only in respect of this application, which was issued on 15 November 2018, but at some stage in July, if not earlier, in late June 2018. This is because it goes to the specific evaluation records of the two bids. It is plainly, in my judgment, correctly described as essential information and documentation relating to the evaluation process. It is within the MoD’s custody and there is a mountain of other authority which makes clear that the reasons for evaluation are important documents, and must be disclosed.
The Court noted that the Ministry of Defence “has not begun to grapple with its obligations in terms of disclosure, either generally or in the context of this application, until an extraordinarily late stage” and that the application for disclosure “should never have been required” since the Ministry “should have voluntarily provided this documentation months ago.” The Court therefore ordered the disclosure of the evaluation records and awarded £79,274.68 in legal costs against the government for forcing the plaintiff to bring the motion for records that should have been voluntarily disclosed in a prompt manner when they were first requested.
