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Court Orders Evidence Disclosure in Public Procurement Dispute

In the context of a ‘somewhat chequered’ public tendering exercise, the High Court has ordered disclosure of evidence to an unsuccessful bidder who claims that the process was undermined by fundamental errors and unfairness. The court ruled that the disclosures were essential to ensure a just determination of the dispute.

An NHS hospitals trust had made four previous abortive attempts to perform a public procurement exercise in respect of a substantial contract to provide laboratory services. After a fifth such procedure the claimant company, which had previously been the successful bidder at least once, was informed that the contract had been awarded to a trade rival.

The company sued the NHS trust for substantial damages on the basis that the process of evaluating its bid had been infected by numerous errors, particularly in calculating fixed costs, and that an unfair methodology had been employed. In pursuit of that claim, the company sought specific disclosure of certain classes of documents relating to the way in which bids were assessed.

It was submitted that the NHS trust had given a number of conflicting and ‘ex post facto’ explanations of what occurred during the tendering process which themselves contained ‘manifest errors’. Resisting the application, however, the NHS trust argued that it was ‘no more than the usual cry of the unsuccessful tenderer’ and that the documents sought were irrelevant to a dispute the resolution of which turned on the correct construction of the invitation to tender.

Directing the disclosure of some, but not all, of the documents sought, the court ruled that the claimant was entitled to see, inter alia, the instructions given to the NHS trust’s evaluation team, contemporaneous records of the procedures followed and financial information on which evaluators had relied. The disclosures will take place within the confines of a ‘confidentiality ring’ to maintain the integrity of the tendering process.