Groupm UK Ltd v Cabinet Office

In procurement challenges, early specific disclosure should ordinarily provide the essential information and documents needed to assess whether the evaluation was fair and lawful. The application must remain proportionate, confidential where necessary, tightly focused on how the evaluation was performed, and distinct from a fishing exercise designed to strengthen a weak claim. The court should assess the application in light of the pleaded case and the issues actually in dispute. Where the defence and evidence relevant to lifting the statutory suspension have not yet been served, an application made before the issues are sufficiently defined may properly be adjourned.

The claimant challenged the Cabinet Office’s award of a media planning and buying contract to Carat. It alleged, among other matters, that Carat’s pricing was unsustainable and that the evaluation contained errors. The claimant applied for early specific disclosure of Carat’s pricing submissions and Ebiquity’s audit notes.

The application was heard before the defence had been served and before evidence supporting the Cabinet Office’s application to lift the statutory suspension had been filed. The central issues were whether early disclosure was justified and whether the application was premature.

1. Application adjourned. The application for early specific disclosure was premature and was adjourned pending service of the defence and the evidence supporting the application to lift the statutory suspension.
2. Applications for early specific disclosure in procurement cases should be approached in accordance with the principles identified in Roche Diagnostics Ltd v The Mid Yorkshire Hospitals NHS Trust [2013] EWHC 933 (TCC). An unsuccessful tenderer is ordinarily entitled to prompt access to essential information and documentation concerning the evaluation process, subject to proportionality and confidentiality. The request must be tightly drawn and focused on material showing how the evaluation was actually performed.
3. The court must distinguish a case supported by a prima facie basis for challenge from one in which the claimant is merely dissatisfied with the result. Disclosure should not be used as a fishing exercise to shore up a weak claim. The competing considerations are the claimant’s lack of knowledge of the evaluation process and the defendant’s need to avoid unnecessary cost.
4. In an application under section 47(H) of the Public Contract Regulations, the court applies, in effect, the familiar interim approach. If there is no serious issue to be tried, the suspension may be lifted. If there is such an issue, the court considers whether damages are an adequate remedy and the balance of convenience. Controversial facts effectively disputed by the claimant cannot properly be relied upon to establish that there is no serious issue to be tried. A general point of law, principle, or obvious inference may be relied upon.
5. The court did not finally determine whether Carat’s pricing documents would be disclosable. If the defendant maintained that Carat’s pricing was sustainable, disclosure of that pricing would likely be required in due course on standard disclosure, subject to the way the defence was pleaded.