Geodesign Barriers Ltd v The Environment Agency

Early specific disclosure in procurement litigation depends on the individual circumstances. An unsuccessful tenderer should generally receive promptly the essential information and documents showing how the evaluation was actually performed, subject to proportionality and confidentiality. The court must guard against disclosure being used as a fishing exercise to support a weak claim. Disclosure may nevertheless be ordered where the defendant’s own causation case makes other tenders relevant. Future permission to amend should not ordinarily be granted without the proposed amendments before the court. A confidentiality ring may include an expert where lawyers cannot properly assess technical bid material, but that does not indicate that expert evidence will ultimately be admissible.

The claimant, an unsuccessful tenderer for temporary flood barrier systems, challenged the defendant contracting authority’s procurement process. The claim principally alleged that the successful tender was non-compliant with the mandatory performance specification and had been wrongly evaluated.

The defendant’s pleaded case was that, even if the successful tender had been disqualified, four other tenders had ranked above the claimant. The claimant sought early specific disclosure, information identifying those tenderers, and permission to amend after disclosure. The central issues were whether the requested material was relevant and proportionate, whether the other bids were relevant to causation, and how the disclosed material should be managed confidentially.

1. Specific disclosure. The court applied the principles governing early specific disclosure in procurement cases. An unsuccessful tenderer is often in a uniquely difficult position because the reasons for failure are within the contracting authority’s knowledge. Prompt disclosure of material showing how the evaluation was actually carried out is generally appropriate, subject to proportionality, confidentiality and the need to avoid a fishing exercise.
2. No order was made for categories A and B because the defendant’s solicitor had given sworn evidence, following searches, that the requested evaluation reports did not exist. The assurance was accepted, but the judge emphasised that any later disclosure of documents falling within those categories could have significant consequences.
3. Disclosure was ordered for emails or guidance concerning compliance with the performance specification, relevant contemporaneous documents relating to the evaluation meetings, and the bids of tenderers A, B, C and D. Those bids were relevant because the defendant’s causation case relied on their being compliant and cheaper, despite the claimant’s pleaded case focusing principally on the successful tender.
4. The request for the identities of tenderers A, B and C was refused. The claimant needed to know the contents of their bids, not their names. The nomenclature A, B, C and D was to be retained within the confidentiality ring.
5. Permission to make future amendments was refused. Amendments should ordinarily be considered in the normal way, with the proposed amendments before the court. The confidentiality ring could include one expert, because lawyers alone might be unable to assess technical compliance. That order did not suggest that expert evidence would be admissible; such evidence would remain relatively rare in procurement disputes.

First-instance applications in a procurement claim. The judgment records that the defendant’s application to lift the automatic suspension under Regulation 47H was resolved by agreement and that the application to strike out was withdrawn.