Disclosure in procurement challenges

One of the obstacles in mounting a procurement challenge is not always having access to the documents on which the decision is based. This makes it harder to be able to support a claim that the decision was reached wrongly. However, a recent case in the Technology and Construction Court demonstrates the willingness of the Courts to order early disclosure of key documents in certain circumstances.

In the case of Roche Diagnostics Ltd v The Mid Yorkshire Hospitals NHS Trust, Roche commenced proceedings regarding the Trust’s evaluation of the financial information with which they were provided as part of the tender process. Having not been able to persuade the Trust to provide them with certain documentation voluntarily, Roche brought an application for the disclosure by the Trust of primary documents demonstrating how the evaluation of the fixed costs element of bidders’ proposals had been carried out. The Trust had previously only been willing to provide secondary documents, which had been created after the evaluation process as a means of explaining how that process had been carried out.

Roche’s application was based on Part 31.12 of the Civil Procedure Rules, which provides that a Court can make an order for the disclosure of specific documents in advance of standard disclosure (which happens later in proceedings once a party had had to plead its case in writing). Having access to the documents earlier, therefore, provides the challenger with the advantage of being able to present a better informed case.

In granting specific disclosure of certain documents, the Court set out a number of broad principles that it said would apply in procurement cases. These recognised that an unsuccessful challenger who wishes to challenge the evaluation process is in a uniquely difficult position because he knows that he lost but the reasons for his failure were in “the peculiar knowledge” of the public authority. The Court said that in general terms 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.”

For similar reasons, the Court awarded pre-action disclosure under Part 31.16 of the CPR of a number of documents in relation to a different dispute between the parties that was not yet subject to litigation.

In summary, while each case will be looked at on its own facts, this judgment offers some encouragement to unsuccessful challengers that the Courts are unlikely to leave them stumbling around in the dark.

Case reference: Roche Diagnostics Limited v The Mid Yorkshire Hospitals NHS Trust