Roche Diagnostics Ltd v The Mid Yorkshire Hospitals NHS Trust

In procurement challenges, an unsuccessful tenderer is generally entitled to prompt disclosure of essential contemporaneous material showing how the evaluation was actually carried out. The court must balance that need against proportionality, confidentiality and the risk of a fishing exercise. Early specific disclosure should focus on material that may show why the tenderer lost, especially where the public authority’s explanations are inconsistent or contain errors. Pre-action disclosure is available where the statutory conditions are met and disclosure would fairly dispose of anticipated proceedings, assist settlement or save costs.

The claimant challenged a public procurement exercise for a ten-year managed laboratory-services contract. It sought specific disclosure concerning the financial evaluation of its bid and the successful bidder’s bid, including fixed costs and additional assays.

It also sought pre-action disclosure concerning an interim contract awarded to the successful bidder for services and possible building works at Dewsbury. The defendant had provided several inconsistent, post-event spreadsheets but had not disclosed the contemporaneous evaluation records. The applications concerned the scope of early specific disclosure and the application of CPR 31.16 to the anticipated challenge concerning the interim contract.

1. Specific disclosure. The claimant succeeded in part. An unsuccessful tenderer is in a uniquely difficult position because the public authority ordinarily has peculiar knowledge of the evaluation process. Subject to proportionality and confidentiality, prompt disclosure of essential information and documents relating to the evaluation actually carried out is generally appropriate.
2. The court must assess each application on its merits. It should distinguish between a claimant with a prima facie case requiring further information and a disappointed tenderer with no substantial basis for challenge. Requests must be tightly drawn and focused on documents showing how the evaluation was performed and why the claimant lost. The court must balance the claimant’s lack of knowledge against the danger of a costly fishing exercise.
3. Here, the defendant’s differing explanations and error-containing spreadsheets created a real possibility of muddle and confusion. The claimant was entitled to disclosure of the evaluation team’s instructions, contemporaneous documents produced for or during the financial evaluation of both bids, and documents generated by any independent check or audit. Disclosure was to take place within the agreed confidentiality ring. Disclosure directed specifically to alleged errors and a broad request for internal reports, minutes and emails was refused.
4. Pre-action disclosure. Applying CPR 31.16 and Black v Sumitomo Corporation [2002] 1 WLR 1562, the court ordered disclosure of documents relating to the invitation to tender for, and the contract awarded for, the interim Dewsbury work. The material was likely to fall within standard disclosure in anticipated proceedings, would assist fair resolution or avoidance of proceedings, and would save costs. Documents concerning building works were also disclosable because of their potential overlap with the managed-services procurement. Other requested categories were refused.
5. The claimant was awarded 85% of its costs of the two applications, reflecting its success subject to a 15% reduction for the over-extensive scope of the applications.