England and Wales High Court (Technology and Construction Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		28 November 2016

Mr Justice Coulson:

1. Introduction

1. This is an application by the claimant for early specific disclosure. The background is a rather unusual procurement dispute. The underlying point of principle is the claimant's potential misapplication – even abuse – of the approach to early specific disclosure in procurement cases set out in Roche Diagnostics Ltd v The Mid-Yorkshire Hospitals NHS Trust [2013] EWHC 933 (TCC).

2. Background

2. In 2014, the defendant sought tenders for work to the heating and water tanks at 22,000 dwellings within the defendant's housing stock. On 9 May, the defendant wrote to the claimant thanking them for their tender and saying:

"The evaluation team has completed its analysis of all compliant tenders received and is in a position to make a notification of its evaluation to Cabinet for acceptance of the tender process so conducted. I am advising you that it is the intention to recommend your tender for acceptance..."

3. Thereafter, nothing apparently happened until 14 September 2016 when the defendant wrote to the claimant in respect of the contract to say:

"We refer to the above procurement for works.

Please note that we have taken the decision not to proceed with this procurement for the following reason:

The evaluation criteria upon assessment were deemed not to produce Best Value for the Council as required by its statutory obligations.

Please note that we intend to commence a new procurement process for these works and will contact you in due course to let you know where further information can be obtained about the new procurement process."

4. On 6 October 2016, the claimant issued these proceedings, claiming that "the purported abandonment decision" of 14 September amounted to a breach of the Public Contracts Regulations 2006. The claimant sought an order setting aside the abandonment decision and an order that – amongst other things - the claimant should be awarded the heating/water tanks contract.
5. On the following day, 7 October, the claimant's solicitors sought two categories of documents from the defendant, namely (i) "the documentation that was before the decision maker who took the abandonment decision notified to our client in the letter dated 14 September 2016"; and (ii) "any report/advice concerning: (a) our client's tender and (b) the abandonment of the procurement." There was subsequent correspondence between the solicitors which indicated that the defendant's solicitors were endeavouring to identify and collate the documents sought.
6. On 27 October 2016, the defendant wrote to the claimant in the following terms:

"We write to advise you that the decision which GEM have challenged has been withdrawn and a fresh decision is to be taken at the Competition Board when it next meets on 28 November 2016.

We invite you to agree a stay of proceedings until 16 December, so as to give your client the option of challenging the fresh decision if your client remains dissatisfied."

The claimant did not agree to stay the proceedings. In addition, they added two further categories to the documents sought by way of early disclosure, namely: (iii) "the minutes of prior meetings of Competition Boards that discussed our client's tender"; and (iv) "all documents held by the defendants regarding other potential procurement/commissioning arrangements for work within the scope of the contracts."

7. On 21 November 2016, the defendant wrote to the court manager at the TCC, seeking an adjournment of the hearing on 25 November of the application for early disclosure, until after the fresh decision had been taken on 28 November. That letter indicated that the decision to withdraw the abandonment decision of 14 September had been made "following consideration of the Claim Form and associated correspondence". The claimant's solicitors replied on 23 November to complain about the defendant's conduct and to insist that the hearing went ahead on 25 November.
8. In an attempt to avoid that hearing and its associated costs, the defendant agreed on a voluntary basis to provide the documents in categories (i), (ii)b), (iii) and (iv). Agreement in respect of some of those categories was not reached until shortly before the hearing. Category (ii)(a), namely "report/advice concerning (a) the claimant's tender" has not been the subject of the voluntary agreement.
9. On the face of it, therefore, the hearing before me on 25 November went ahead at the claimant's insistence, in order to deal solely with category (ii)(a). However, as Mr Coppel explained, the issues were wider than that because he maintained that, in the circumstances of this case, the application for early disclosure was in any event unjustified.

3. The Proper Approach

10. In Roche, having analysed the various relevant authorities, I set out at paragraph 20 the broad principles that apply to applications for early specific disclosure in procurement cases. I said:

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."

11. I am conscious that there are those who think that this approach is a little generous to claiming contractors. Inevitably, I disagree: I think it is important that the playing field is made as level as possible, as quickly as possible. In all events, my understanding is that these principles have generally worked well over the last three years. But I am aware that, on occasion, they have been relied on by claimants in circumstances which, on analysis, are far away from the risks of unfairness and detriment identified in Roche. Unhappily, I agree with Mr Coppel that this is one such case.

4. The Common Sense Position

12. In my view, on any consideration of the common sense position in this case, it would not be appropriate to order specific early disclosure. This is not a case that falls obviously within the principles set out at sub-paragraphs 20a) and b) of Roche. There are a number of reasons for that conclusion.
13. First, the decision to abandon the procurement, the legality of which lies at the heart of the claimant's pleaded case, has been withdrawn. On one view, it therefore has no status or relevance. What is more, the defendant has said that the decision was withdrawn because of the claimant's case, as set out in the Claim Form. So, unlike the usual position in which the legality of the decision not to award the tender to the claimant is hotly contested, this is a case where it is accepted that the principal decision under review cannot stand. In the proceedings as currently constituted, therefore, there can be little remaining in issue, save perhaps for costs.
14. Secondly, the defendant has made plain that the uncertainty created by the withdrawal of the abandonment decision will not last. A decision is being taken on Monday 28 November to decide whether or not to abandon the procurement (presumably for different reasons to those expressed in the letter of 14 September) or to continue with the claimant as the successful tenderer. It is really not sensible for the claimant to waste the parties' time, and ask the Court to waste its time, considering an application for documents which could be rendered academic within 72 hours.
15. There was some debate as to whether it was possible for the defendant to decide to continue with the procurement as if nothing had happened, and indeed whether the claimant would be content with that course. Although that debate is for another day, I think that Mr Coppel made a fair point when he noted that, on the face of the Claim Form, the claimant is seeking an order that they be awarded the contract. On that basis, therefore, as a matter of common sense, what matters is the defendant's further decision on 28 November, and how the procurement might be progressed thereafter. Whatever happens on 28 November, the decision that was communicated on 14 September is therefore likely to be an irrelevance.
16. In those circumstances, I agree with Mr Coppel that, as he put it in paragraph 13 of his skeleton argument, "the application was needlessly aggressive, misconceived, unnecessary and unjustified in the light of the Roche test". It appeared to be driven by the claimant's desire to achieve some form of tactical advantage from the fact that the decision to abandon the procurement has been withdrawn. Moreover, once the defendant had voluntarily agreed to provide most of the documents sought in any event, the claimant ought to have recognised that no further benefit was going to accrue by insisting on going ahead with the oral hearing on 25 November.
17. For all these reasons, therefore, I do not consider that this is a case where Roche applies. Since the only relevant decision has now been withdrawn, common sense dictates that, even if the parties cannot come to terms after the fresh decision on 28 November, it is likely to be that decision, rather than the one on 14 September, which will ultimately matter. In those circumstances, I am not minded to make any order at all on the application for early disclosure.

5. Category ii(a)

18. Now assume that I am wrong about that, and that the application for early disclosure was properly made. In those circumstances, I would not have made the order in relation to category (ii)(a) in any event.
19. Mr Barrett made plain that, from the claimant's perspective, the central issue was the legality of the abandonment decision communicated on 14 September. On that basis, the documents in categories (i), (ii)(b) and (iii) are all directly relevant. By contrast, it was not possible to see how the documents in category (ii)(a) might be material. Documents relating to the claimant's tender which (by definition) were not connected to the abandonment decision (because on their face those would be caught by categories (i), (ii)(b) and (iii)) would, on the claimant's own admission, not be relevant to the central issue.
20. As a result, I asked Mr Barrett why it was that he was seeking category (ii)(a) on top of and in addition to category (ii)(b). His answer, which was to the effect that there might be positive comments about the claimant's tender in the other documents, made plain that the claimant did not need this document in order to understand the abandonment decision communicated on 14 September. Mr Coppel was right to say that this, at best, would have been material for cross-examination.
21. There were other difficulties with the width of the documentation sought in category (ii)(a). In his oral submissions, Mr Barrett qualified that category both in respect of the time period for which the documents were sought and the nature of the documents sought relating to the claimant's tender. In my view those qualifications demonstrated that, on its face, this category was too widely drawn in any event.
22. Thus, if this had been a legitimate application on Roche principles, I would have allowed categories (i), (ii)(b) and (iii), but I would have rejected the claim at category (ii)(a). I express no concluded view about category (iv) because those documents will now be provided voluntarily, although it does seem to me that at least some of them may be of marginal relevance.

6. Conclusions

23. For the reasons set out above, I refuse the claimant's application. On the face of it, it would follow that the claimant should pay the defendant's costs of the hearing on 25 November, since that hearing only went ahead at their insistence. I will, however, consider any submissions that the parties make on costs, to be provided in writing within 7 days of the date of this Judgment.