The
Hon. Mr Justice Coulson:
1.
THE
APPLICATIONS
- This is a procurement dispute. Pursuant to an application dated 20 March 2015,
the
claimant seeks orders for specific disclosure of documents; an answer to its request for
the
identities of
the
four other unsuccessful tenderers whose bids were rated higher than their own; and permission to amend its particulars of claim following
the
provision of
the
specific disclosure sought and
the
relevant information. All these applications are opposed.
- There were also applications by
the
defendant to lift
the
automatic suspension pursuant to Regulation 47H and by
the
defendant to strike out
the
claimant's claim. Happily, those matters have been resolved by agreement. Accordingly,
the
parties are agreed that
the
suspension should be lifted, which has
the
effect that
the
claimant's claim in these proceedings is for damages only.
The
defendant has withdrawn
the
application to strike out.
The
consequence of that is that
the
court is entitled to assume that
the
claimant has raised at least a prima facie case.
- I propose to set out briefly
the
factual background (Section 2), before going on to address
the
pleaded claim and
the
issues that arise (Section 3). Having summarised
the
law in Section 4, I then consider
the
documents that have so far been supplied by
the
defendant, and
the
documents which they say do not exist (Section 5 below). Thereafter I deal in Section 6 with
the
application for specific disclosure; in Section 7 with
the
application for further information relating to
the
identities of
the
unsuccessful tenderers; and in Section 8 with
the
application in respect of amendments. There is a discrete point as to
the
membership of
the
confidentiality ring, which I deal with in Section 9 below. At
the
end of
the
hearing, because more than
the
full three hours had already elapsed, I indicated those parts of
the
applications I would grant, and those I would refuse, together with brief reasons. As promised, this Judgment contains my detailed reasons for my decision.
2.
THE
FACTUAL BACKGROUND
The
defendant is a contracting authority and its procurement for temporary flood
barriers
systems was subject to
the
Public Contracts Regulations 2006.
The
tender process took place between October and December 2014.
The
Invitation to Tender ("ITT") stated that there were two stages to
the
evaluation process.
The
first stage was
the
verification of compliance with
the
mandatory performance specification; and
the
second stage was
the
scoring and ranking of
the
tenders. There were two elements to this second stage:
the
price, and a quality evaluation by reference to certain technical considerations.
The
price/quality split was 60/40.
The
quality criteria, which numbered six in total, each had a percentage weighting.
- By emails at
the
end of December 2014,
the
claimant was notified that it had been unsuccessful.
The
successful bidder was Inero AB ("Inero").
The
claimant, who was
the
incumbent provider of this service to
the
defendant, made immediate complaints about
the
tender process. In particular,
the
claimant complained that
the
Inero system did not comply with
the
mandatory performance specification.
The
information subsequently provided to
the
claimant indicates that
the
scores awarded to
the
claimant in respect of
the
second stage technical considerations were precisely
the
same as those awarded to Inero.
The
claimant therefore lost on price; indeed,
the
defendant has said expressly that, by reason of price,
the
claimant's bid was ranked sixth overall. This means that, in addition to Inero, there were four other tenderers (who have been referred to as A, B, C and D) whose bids scored more highly than that of
the
claimant.
The
claim form was issued and served on 26 January 2015. Detailed particulars of claim were provided on 5 February 2015.
The
defence was served on 4 March 2015 and
the
reply on 30 March 2015. It is necessary to analyse
the
pleaded claims and
the
issues arising out of
the
pleadings in a little more detail.
3.
THE
PLEADED CLAIM AND
THE
ISSUES ARISING
- Paragraph 14 of
the
particulars of claim sets out
the
detailed criticisms of
the
defendant's bid evaluation process. Sub-paragraphs 14(1), (2), (3) and (4) are all allegations concerning what are said to be flaws in
the
defendant's evaluation of
the
Inero bid. Furthermore, these allegations are very specific: they mainly go to
the
claimant's principal complaint that
the
Inero bid did not comply with
the
defendant's mandatory performance specification (i.e.
the
first stage of
the
tender evaluation process).
- Paragraph 14(5) is a summary paragraph:
"(5) In
the
premises, it is averred that:
(a)
The
tender process and evaluation conducted by
the
Defendant was fundamentally flawed.
(b)
The
Inero solution should have been disqualified on
the
basis that it was non-compliant with
the
mandatory specification.
(c) Further, or in
the
alternative,
the
price and quality scores allocated to Inero failed to take into account
the
deficiencies and whole life costs of its solution.
(d)
The
award of
the
contract to Inero and
the
deployment of its untested flood defence system by
the
Defendant could create significant safety risks for English persons and property in flood areas. It is averred that a breach in a flood defence
barriers
unleashes forces which cause far greater risks than gradual floodwater damage, including potential loss of life.
(e) In
the
absence of any other higher bids which are genuinely compliant with
the
specification,
the
Claimant should have been awarded
the
Contract and/or
the
tender and/or evaluation process should be rerun."
- In my view, on a proper reading, this sub-paragraph does not extend
the
nature of
the
claimant's complaints beyond
the
points made in
the
preceding sub-paragraphs, which all concern
the
evaluation of
the
Inero bid and, primarily,
the
defendant's failure to appreciate
the
non-compliant nature of
the
Inero design/specification.
The
defence responds on all of these matters in some detail. Furthermore, at paragraph 15 of
the
defence, is a table intended to make good
the
point that
the
claimant, with an overall mark of 70.9, was ranked sixth out of
the
eight tenders which were said to be compliant. But at paragraph 17, by reference to these other tenders, a different point is taken as to causation.
The
defendant avers:
"If
the
Defendant had disqualified Inero or marked Inero's tender unfavourably, as
the
claimant contends
the
Defendant should have done, it would have made no difference to
the
outcome for
the
claimants. At most, if Inero had been disqualified,
the
claimant's tender might have been placed fifth rather than sixth out of
the
complaint tenders. It follows that
the
claimant had no chance of winning
the
contract and has not suffered or risked suffering any loss consequent on
the
breaches alleged in its Particulars of Claim, which relate exclusively to
the
evaluation of Inero's tender."
- In
the
reply, this paragraph is put in issue and wider criticisms are made of
the
defendant's evaluation process.
The
reply avers that an inference should be drawn that, so flawed was
the
defendant's evaluation process, all of
the
allegedly compliant bids (other than
the
claimant's own bid) did not in fact comply with
the
mandatory performance specification.
- Although I accept that
the
claimant has demonstrated a prima facie case, it struck me on reading
the
papers prior to
the
hearing that this was not a claim which could be described as particularly strong. First, as demonstrated by my summary of
the
pleadings above,
the
pleaded criticisms of
the
defendant's process focus entirely on
the
Inero bid.
- Secondly,
the
claimant's case amounts to a submission that
the
defendant has made a manifest error in accepting Inero's detailed design, without realising that this design did not comply with their own performance specification. That seems to me to be a relatively high hurdle for
the
claimant to overcome. It is not that different to
the
claim advanced in Group M UK
Ltd v
Cabinet Office [2014] EWHC 3659 (TCC), which, on
the
application for an injunction, Akenhead J said was so unlikely to succeed that he found that it did not even raise a serious issue to be tried. This adverse impression is no more than a matter of common sense: just how likely is it that
the
defendant, with all its experience and technical expertise, would accept a tender that did not comply with its own mandatory performance specification?
- Thirdly,
the
causation point raised by
the
defendant means that, even if permission was subsequently granted to amend
the
Particulars of Claim,
the
claimant would have to show that, in addition to
the
Inero bid,
the
other four bids A, B, C and D were also non-compliant, or should have been rejected for other reasons. That is, on any view, a tall order.
- I had therefore expected
the
defendant to be able to demonstrate, in fairly short order, that its tender evaluation had considered, at least in general terms,
the
technical points now put in issue by
the
claimant, and how and why it had concluded that Inero's tender was compliant. However, as we shall see,
the
defendant's tender evaluation material is most unsatisfactory.
THE
LAW
- CPR 31.12 provides:
"Specific disclosure or inspection
31.12
(1)
The
court may make an order for specific disclosure or specific inspection.
(2) An order for specific disclosure is an order that a party must do one or more of
the
following things –
(a) disclose documents or classes of documents specified in
the
order;
(b) carry out a search to
the
extent stated in
the
order;
(c) disclose any documents located as a result of that search."
Early specific disclosure, in accordance with these provisions, has been a feature of procurement disputes for some time: see, by way of example,
the
decision of Vos J (as he then was) in Alstom Transport
v
Eurostar International
Ltd
[2010] EWHC B32 (Ch).
- In Roche Diagnostics
Ltd v
Mid Yorkshire Hospitals NHS Trust [2013] EWHC 933 (TCC) I summarised
the
principles applicable to applications for early specific disclosure in these terms:
"20. 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 note that these principles have been adopted in subsequent cases including Covanta Energy
Ltd v
Merseyside Waste Disposal Authority [2013] EWHC 2964 (TCC). I bear those principles in mind when approaching this application.
5.
THE
DOCUMENTS SUPPLIED AND
THE
DOCUMENTS THAT DO NOT EXIST
- It is not unfair to say that, although
the
defendant has endeavoured to be helpful in terms of
the
documents which it has supplied to
the
claimant voluntarily, they are best described as something of a rag-bag. They comprise
the
following:
(a) A document produced after
the
event, for debriefing/feedback purposes, which compares
the
scores awarded to both Inero and
the
claimant in respect of
the
second stage technical questions. It is on
the
basis of this comparison document that I have said at paragraph 7 above that
the
scores awarded to Inero and
the
claimant for this element of
the
evaluation were
the
same.
The
evidence makes plain that this was not a document which was in existence at
the
time that
the
decision was taken to award
the
contract to Inero. More importantly, it contains no material at all about
the
first stage of
the
evaluation process, namely
the
compliance or otherwise with
the
mandatory performance specification.
(b)
The
defendant has supplied a copy of
the
Inero bid in full, with only some (irrelevant) sections redacted.
(c)
The
defendant has supplied a variety of what are called "summary score sheets" in landscape form. These also appear to be part of
the
subsequent debriefing/feedback exercise, as opposed to documents produced for or by
the
decision-making exercise itself. They appear to relate to pricing. As with
the
comparison document referred to at sub-paragraph (a) above, these sheets make no reference whatsoever to
the
issue of compliance (or otherwise) with
the
performance specification.
(d) Some evaluators' notes, in manuscript form, have been provided. They are difficult to assess, not just because they are in manuscript, but because it is hard to correlate what they say with
the
summary score sheets. One of these documents is apparently said to have been "written on
the
back of an old notebook".
- There is a tantalising glimpse of how
the
evaluation process actually worked in
the
defendant's answer to
the
Request for Further Information in respect of paragraph 17 of
the
Defence. It is worth setting this out in full:
"a.
The
deadline for
the
submission of tender responses was noon on 15 December 2014, with
the
submission to be made thorough
the
Procontract portal.
The
Agency received 10 tenders. Of these 10 tenders 2 were subsequently found not to satisfy
the
mandatory requirements. These submissions were ruled out following clarification from
the
bidders that they did not meet
the
mandatory requirement of holding back flood water to a 1m height.
b.
The
tenders were assessed by three evaluators, with
the
assistance of a procurement officer to ensure that
the
evaluation was carried out fairly.
The
details and relative experience of
the
evaluators of
the
Procurement are outlined in
the
Defence at paragraph 24 and were provided to
Geodesign
's solicitors on 22 January 2015. Together these evaluators, of whom two are chartered civil engineers, have more than 60 years of relevant experience.
The
evaluators are colleagues from different parts of
the
country and are fair and objective flood risk management professionals. No single evaluator dominated
the
evaluation and no evaluator felt unable to voice their opinion.
c. No written guidance was provided to
the
evaluators, although aspects of
the
evaluation were discussed in emails.
The
assessment of
the
tenders was carried out in two stages as detailed in
the
tender document (see page 5 of
the
Annex to
the
Defence).
The
percentage weighting of each criterion reflected
the
Agency's financial and operational priorities.
d. Having analysed
the
tender submissions, two evaluators met in person on 15 December 2014 (with
the
third joining later that day) and then all three evaluators met on 16 December 2014 to assess
the
submissions. Firstly they considered whether each tender satisfied
the
mandatory requirements. This was a binary, or pass/fail decision:
the
submission either satisfied
the
mandatory requirements or it did not. Accordingly,
the
tenders were not scored against
the
mandatory requirements. Since
the
assessment against
the
mandatory requirements was either pass or fail, no separate record of
the
decision was prepared. Inero's and
Geodesign
's submissions were (amongst others) found to be compliant."
- However, no documents of any kind have been provided in connection with
the
events of 15 and 16 December 2014, apart from
the
very skeletal manuscript notes, to which I have already referred in paragraph 20(d) above. Since those notes contain nothing in respect of
the
mandatory performance specification, it would appear that what
the
defendant calls
the
'binary decision' involved in
the
first stage of
the
evaluation is not
the
subject of any contemporaneous documentation at all. No minutes of
the
pleaded meetings have been supplied, nor is there any evidence that there are any such minutes.
- These absences are explained by
the
witness statement provided by Mr McKenzie, a senior lawyer with
the
defendant, who says in express terms that there are no contemporaneous Tender Evaluation Reports at all. He makes plain that, in terms of
the
documentation generated by
the
tender evaluation process,
the
claimant has been provided by
the
defendant with everything that
the
defendant has.
- I have to say that I find that evidence extraordinary. In my experience, a contracting authority produces some kind of Tender Evaluation Report as a matter of routine, in order to aid and support
the
decision-making process. That Report will deal with all
the
evaluation criteria relevant to
the
procurement exercise, and will identify, in respect of each bid,
the
scores awarded, together with a brief explanation for each score. Where a question is more general, such as
the
so-called 'binary' question as to whether or not
the
tenderer's design met
the
mandatory performance specification, there will usually be something recorded in writing recording
the
answer to that question in respect of each tender. Sometimes that will be done by reference to various key elements of
the
specification itself. Such a Tender Evaluation Report also forms
the
basis of
the
subsequent debriefing/feedback exercise when
the
tenderers are informed of
the
result.
- As I observed in my brief oral judgment at
the
end of
the
hearing,
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. It gives rise to a whole host of questions. For example; how can any of
the
tenderers be certain that there has been a fair and transparent process if
the
documentation relating to that process is a miscellaneous collection of manuscript notes, some written on
the
back of an old notebook, and some subsequent documents produced for
the
debriefing/feedback exercise? Furthermore, how could that latter category of documents have even been prepared, if there were no contemporaneous documents recording
the
results of
the
evaluation? Take for example
the
comparison document which shows that
the
scores awarded to
the
claimant and Inero, in respect of
the
second stage technical questions, were
the
same. How could
the
writer of that document (whoever they were) have been sure that
the
scores were indeed
the
same, if there were no contemporaneous record of
the
scores actually awarded? How was
the
detail in that debriefing/feedback document prepared if there was nothing on which it could have been based?
- Accordingly, as Mr Gollancz frankly acknowledged, it was
the
defendant's case that
the
sort of Tender Evaluation Report and supporting documentation that are common in procurement cases, simply did not exist here. Instead, it would appear that
the
defendant was saying that everything was oral, informal, and ad hoc, and that detailed work was only done for
the
debriefing/feedback exercise subsequently. On
the
defendant's own case, therefore, it seems to me that there are concerns about
the
process which was followed. In forensic terms, it might be said at this stage that
the
fact that this claim cannot be described as strong on
the
face of
the
pleadings is balanced out by
the
fact that
the
evaluation process on
the
documents looks, to put it neutrally, questionable. Against that rather unusual background, I turn to
the
application for specific disclosure.
6.
THE
APPLICATION FOR SPECIFIC DISCLOSURE
6.1 Categories A and B
27. These categories are defined in
the
draft order sought by
the
claimant as follows:
(a) "Any evaluation, technical or other reports drafted by or for
the
Respondent on
the
outcome of
the
evaluation bids and tender process as a whole (category A);
(b) Any evaluation, technical or other reports drafted by or for
the
Respondent on its assessment of
the
compliance with
the
performance specification of
the
Inero AB bid,
the
Applicant's bid and/or bids of
the
Tenderers A, B, C and/or D (such tenderers being those identified by
the
Respondent at paragraphs 15 and 16 of
the
Defence) (category B)."
- I am in no doubt that
the
evaluation documents referred to in category B, which would address
the
claimant's particular complaint about
the
absence of any evaluation of
the
tenderers' compliance (or otherwise) with
the
mandatory performance specification, are a sub-category of category A, which encompasses all Tender Evaluation Reports and related documents concerned with
the
tender process as a whole.
- It is
the
documents in categories A and B which Mr McKenzie has said in a sworn statement do not exist. It is that omission which I have addressed in Section 5 above. On an application for specific disclosure, if a lawyer has said in a signed witness statement that a number of searches have been undertaken and that these documents do not exist then there is very little further that
the
court can or should do. Here there have been at least two searches. I am quite prepared to accept Mr McKenzie's assurance, no matter how surprising I find it to be.
- But it is important to stress
the
consequences of that assurance. I dealt with this orally during argument so there could be no doubt about it.
The
existence of these documents is so central, both to
the
claimant's pleaded case, and to this application for specific disclosure, that it could not be said at a later date that
the
defendant was unaware of precisely what was being sought. Neither could it credibly be said that these documents had, somehow, been inadvertently overlooked. If in
the
future
the
defendant purports to disclose documents which plainly fall within categories A or B, then Mr McKenzie's assurance would, quite simply, have been untrue. Significant consequences would probably flow from that.
- Accordingly, for
the
reasons that I have given, I accept Mr McKenzie's assurance that there are no further documents of this type, and I therefore make no order in respect of categories A and B.
6.2 Category C
The
documents in this category are described in
the
draft order sought as:
(c) "Any guidance and/or instructions provided to
the
evaluators of
the
Respondent, including by email, relating to
the
assessment of whether bids complied with
the
performance specification (category C)".
- Although
the
defendant originally said that these documents did not exist, it subsequently modified that position (in contrast to
the
position in respect of categories A and B) and stated that there were some emails between
the
evaluators and
the
procurement officer, Mr Robin Browne.
The
suggestion is that these emails may contain some of
the
relevant guidance. However,
the
defendant maintains that
the
claimant has more than enough information as it is, and has no need for
the
early specific disclosure of these documents at this stage.
- I respectfully disagree with that submission. I have already expressed my surprise at
the
dearth of any contemporaneous documentation relating to
the
tender evaluation process. Because of
the
absence of a Tender Evaluation Report (or anything remotely like it), these emails may be
the
only contemporaneous documents which will be disclosed in this case that evidence
the
evaluation process actually undertaken. They may therefore be of critical importance. It seems to me that, particularly since
the
defendant has taken
the
time and trouble to indentify that there are these emails in existence, they should be disclosed forthwith.
6.3 Category D
- These documents are said to comprise:
(d) "Any contemporaneous score sheets and notes (including meeting notes and site visit notes and reports) relevant to
the
compliance assessment and/or scoring and/or ranking of
the
Inero AB bid,
the
Applicant's bid and/or Tenders A, B, C and/or D (category D)".
- In general terms,
the
position in relation to category D is
the
same as in respect of categories A and B, namely that no further documents are said to exist, beyond those documents that have already been disclosed. Again I accept Mr McKenzie's assurance to that effect; again, should further documents in this category be provided subsequently, it would mean that his statement was untrue.
- There are two possible exceptions to that position. One possible exception concerns
the
scores provided in respect of tenders A, B, C and D.
The
defendant has taken
the
line that those documents are not relevant to
the
pleaded case. I address that in
the
context of
the
bids that were made by tenderers A, B, C and D, dealt with in Section 6.4 below. If I conclude that those four bid documents should be
the
subject of specific disclosure then it would follow that so too would any scores and evaluation documents relating to those four bids (to
the
extent that they have not already been disclosed).
- Secondly, this category might also catch any of
the
documentation which underlies
the
process which has been pleaded in answer to
the
request for
the
further information and which focused on
the
meetings on 15 and 16 December 2014 (paragraph 21 above). As I have said,
the
clear inference from Mr McKenzie's statement is that there are no contemporaneous documents dealing with these meetings and discussions, beyond
the
emails which are
the
subject of category C. But to
the
extent that there is any doubt about it, I order
the
specific disclosure of any contemporaneous documents relating to
the
process described in paragraph 21 above.
6.4 Category E
- This category comprises
the
bid documents making up tenders A, B, C and D. I take
the
view that these documents are disclosable and should be
the
subject of specific disclosure now. My reasons are set out below.
- I accept Mr Gollancz's submission that
the
bids put in by tenderers A, B, C and D are irrelevant to
the
claimant's pleaded claim for breach of
the
Regulations.
The
evaluation of those bids is likewise irrelevant to that claim. As I have noted,
the
pleaded claim focuses entirely on
the
evaluation of
the
Inero bid.
- However, I consider that paragraph 17 of
the
Defence (paragraph 12 above), and
the
reply to that paragraph, expressly put these tenders in issue. It is
the
defendant who, quite reasonably, takes
the
point that, even if
the
claimant's pleaded criticisms of
the
evaluation of
the
Inero bid were all sustained, it would have made no difference to
the
outcome because there would have been four other compliant bids that were cheaper, and therefore would have prevented
the
claimant from being awarded
the
contract in any event. In order to meet
the
causation point taken by
the
defendant,
the
claimant will be required to argue that, in some way or another, tenders A, B, C and D were all non-compliant or had in some way been evaluated as a result of manifest errors. This may be something of a tall order, but it is
the
path down which
the
claimant has to go, in view of
the
defendant's pleading and
the
claimant's comparatively high price for
the
work.
- For those reasons, therefore, it seems to me that bids A, B, C and D are relevant to
the
pleaded issues in
the
case. Moreover, as I made plain at
the
hearing, it is in both parties' interests for these documents to be disclosed now. Mr Gollancz confirmed that
the
defendant could disclose these documents easily and promptly. If
the
claimant receives copies of these bids now then, with
the
assistance of
the
expert (see below),
the
claimant ought to be able to say in pretty short order whether or not they are compliant. If they are, then that may well be
the
end of
the
litigation.
- For those reasons, I consider that
the
documents in
the
category E should be
the
subject of specific disclosure. They would be disclosed into
the
confidentiality ring to which I refer to at Section 9 below.
6.5 Category F
- These documents are said to be:
(f) "Any written references and/or notes of conversations with referees obtained in
the
relation to
the
Inero AB bid,
the
Applicant bid and/or Tenders A, B, C and D) (category F)."
- In my view this can be dealt with shortly. These documents may well be disclosable pursuant to standard disclosure. They are, however, of peripheral relevance. There is no reason why these documents should be
the
subject of early specific disclosure.
6.6. Summary
- Accordingly, I order disclosure of
the
documents in category C and E, together with any documents that may have slipped through
the
net in category D, and any documents recording
the
scores/evaluations relating to bids A, B, C and D. I confirm that that order is on
the
basis that there are no other documents in existence in categories A, B and D.
7.
THE
APPLICATION PURSUANT TO CPR PART 18.1
The
claimant seeks, by way of a request for information,
the
identities of
the
tenderers A, B and C. In my view,
the
request is unwarranted.
The
claimant does not need to know who these unsuccessful bidders were;
the
claimant simply needs to know what their bids contained. No basis has been identified for how or why
the
names themselves should be supplied. Accordingly, when
the
bids are disclosed into
the
confidentiality ring,
the
A, B, C and D nomenclature should be retained.
8.
THE
APPLICATION IN RESPECT OF AMENDMENTS
The
claimant originally sought permission to amend in
the
future, following
the
specific disclosure process. However, as I pointed out during
the
course of argument, that is entirely premature. Amendments must be dealt with in
the
normal way; save for permission to make consequential amendments to a defence or a reply, it is almost always a mistake for a court to grant permission to amend without
the
actual amendments being before
the
court.
- As an alternative, Ms Hannaford QC suggested that
the
court could lay down a timetable for amendments, with
the
defendant having an opportunity to object, but otherwise allowing
the
future amendments. That can sometimes be an appropriate course. However, I would be reluctant to adopt that course here. This case has all
the
hallmarks of a procurement dispute where everything seems to be in issue. Furthermore, adopting
the
course suggested by Ms Hannaford QC means that
the
court may lose an important element of its case management role:
the
defendant may not object to an amendment but
the
court might. In addition, it would be a great shame if controversial amendments were allowed through simply because
the
defendant failed to make an objection by a particular date.
- For all those reasons, I decline to make any orders in respect of amendments.
9.
THE
CONFIDENTIALITY RING
The
confidentially ring in
the
present case is made up of counsel and solicitors representing
the
claimant. No representative of
the
claimant company itself is within
the
confidentiality ring, and no application has been made to me for such a person to be added.
- Instead Ms Hannaford QC argued that
the
confidentiality ring should include two experts, so as to allow
the
lawyers to be advised by those experts as to
the
technical compliance (or otherwise) of
the
other bids with
the
performance specification. She makes
the
point that, if
the
confidentiality ring included neither clients nor experts,
the
lawyers alone would be wholly unable to deal with
the
technical points arising out of
the
detail of
the
bids.
- It seems to me that that submission is correct. It would be wrong to hobble
the
claimant's preparation of its case by refusing to allow documents to be disclosed into
the
confidentiality ring to anyone other than lawyers. I am aware that this is a common problem in procurement disputes and that, all too often, defendants insist that only lawyers should be in
the
confidentiality ring. There may be times when that is appropriate but, all too often, detailed issues arise out of
the
subject matter of
the
bids which
the
lawyers are simply unable to address.
- Thus, I give permission for
the
confidentiality ring on
the
claimant's side to include an expert. As I said at
the
hearing, it would be much better if it was limited to one expert, and that is
the
order that I make. I have not seen anything which explains why two experts are required.
- I should also emphasise that this decision is not to be taken as an early indication that, in some way, I consider that expert evidence is going to be appropriate in this case. Far from it: for
the
reasons set out in BY Development Limited and another
v The
Covent Garden Market Authority [2012] EWHC 2546 (TCC), I consider that it will be relatively rare for expert evidence to be admissible in a procurement dispute. In any event, in
the
present case, if there is a dispute about expert evidence, it is for another day. An expert can be included in
the
confidentiality ring but that is as far as this current order must go.
- I would urge
the
parties to agree
the
form of
the order arising from this Judgment and to agree, if possible, all other consequential matters.