GEM Environmental Building Services Ltd v London Borough of Tower Hamlets & Anor

Early specific disclosure in procurement proceedings is exceptional and fact-sensitive. The court must balance the unsuccessful tenderer’s need for prompt information about the evaluation against proportionality, confidentiality and the risk of a fishing exercise. Requests should be tightly drawn and focused on material showing how the evaluation was performed and why the tenderer lost. Where the challenged procurement decision has been withdrawn and a fresh decision is imminent, disclosure concerning the withdrawn decision may be unnecessary or academic. A request for documents about the tender itself should be refused where those documents do not bear on the challenged decision and the request is too wide.

The claimant challenged the defendants’ decision to abandon a procurement for heating and water-tank works and sought early specific disclosure. Before the hearing, the defendants withdrew the challenged decision and agreed voluntarily to provide most of the requested documents. A fresh decision was due to be taken shortly afterwards.

The remaining dispute concerned documents relating to the claimant’s tender. The issues were whether early disclosure was justified under the approach in Roche Diagnostics Ltd v The Mid-Yorkshire Hospitals NHS Trust [2013] EWHC 933 (TCC), and whether the particular category of documents was relevant and sufficiently focused.

1. Application refused. The withdrawal of the challenged abandonment decision meant that it had little remaining status or relevance. A fresh decision was imminent and could render the requested disclosure academic. In those circumstances, the application was unnecessary and unjustified.
2. The principles in Roche Diagnostics Ltd v The Mid-Yorkshire Hospitals NHS Trust [2013] EWHC 933 (TCC) require the court to consider the individual circumstances of each procurement case. An unsuccessful tenderer will generally need prompt access to essential information about the evaluation, subject to proportionality and confidentiality. The court must distinguish a claimant with a prima facie case requiring further information from one seeking documents merely to support a weak or speculative challenge. Requests must be tightly drawn and focused on how the evaluation was actually performed.
3. Even if early disclosure had been appropriate, the request for reports or advice concerning the claimant’s tender would have been refused. The documents were not shown to bear on the withdrawn abandonment decision and, on the claimant’s own case, would not assist in understanding that decision. Any positive comments about the tender would at most have been material for cross-examination. The category was also too widely drawn.
4. If the Roche approach had applied, categories (i), (ii)(b) and (iii) would have been allowed, while category (ii)(a) would have been rejected. No concluded view was expressed on category (iv), which the defendants had agreed to provide voluntarily. Costs submissions were invited in writing within seven days.