HT-2024-000271 - [2024] EWHC 3039 (TCC)

An unsuccessful tenderer who wishes to challenge the evaluation process is in an 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 the 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.

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".

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.

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.

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. (emphasis added)

The defendant complains that the result of the claimant’s application if successful will be that there is an automatic right to specific disclosure for a disgruntled tenderer in a regulated procurement case. I do not accept this. First of all, the claim is filtered by the claimant’s need to show a prima facie case. The claimant does so here; it will not be the case that every claimant is able to do so. It will not be sufficient, it seems to me, simply to show a lack of transparency unless one shows – arising from that lack of transparency – some kind of prima facie argument that the reasoning or scoring is inadequate.

Second, of course, the claimant has to show that the reasons given are inadequate. If adequate reasons have been given within the award letter, then the claimant would simply fail in an application for specific disclosure on the basis that an early application for specific disclosure is for reasons I have given already, to be limited, only very narrowly, to the documents necessary to judge the adequacy of the reasons given.

I do not understand H.H. Judge Pearce to be saying that disclosure can only be ordered in a “reasons” challenge. He was considering such a challenge. Here, the challenge is not as such to the adequacy of the reasons given, but more as to the process by which the scoring system was carried out. I do not accept that disclosure going to such an issue cannot be ordered.