Alstom Transport UK Ltd v London Underground Ltd & Anor

Early disclosure in a procurement challenge must enable an aggrieved tenderer to understand the evaluation actually carried out and to plead its case properly. The court must balance that need against the risk of ordering disclosure equivalent to standard disclosure before the issues have been defined. A claimant’s uniquely difficult position, together with opaque, inconsistent or misleading explanations from the contracting authority, may justify focused disclosure. The order should remain proportionate and targeted to documents material to the pleaded issues, rather than extending to wider categories sought merely to investigate whether a claim may exist.

The claimant was an unsuccessful under-bidder in a procurement for a traction system for the defendants’ Central Line trains, conducted under the Utilities Contracts Regulations 2006. After the defendants announced Bombardier Transportation UK Limited as the successful tenderer, the claimant issued proceedings challenging aspects of the evaluation and applied for specific early disclosure.

The application was heard before the defendants’ application to lift the automatic suspension. The claimant sought documents concerning stage 3 non-compliances, evaluation and moderation, the decision-making process and the successful bid. The central issue was the proper scope of early disclosure before the defence and standard disclosure.

1. The application was granted in part. Disclosure was ordered in relation to the evaluators’ and moderators’ contemporaneous comments and score sheets concerning the relevant sections of Bombardier’s bid. Disclosure was also ordered of documents in Mr Campbell’s possession, custody or power, or for which he was responsible, evidencing consideration of the reasoning behind paragraph 3.19 of the July 2016 report. The remaining categories were refused.

2. The court adopted the principles summarised in Roche Diagnostics Limited v The Mid Yorkshire Hospitals NHS Trust. An aggrieved tenderer is in a uniquely difficult position and should be provided promptly with 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.

3. That principle does not justify standard disclosure at an early stage. The court must balance disclosure required to understand why the claimant lost and plead the case properly against disclosure extending beyond what is proportionate before the issues have been defined by the defence.

4. The defendants’ internally inconsistent and misleading explanations, late disclosure and changing evidence reinforced the need for focused disclosure. They did not justify disclosure of whole bid sections, earlier drafts, documents said not to exist, or material which the evidence showed was already contained in the disclosed tracker or was not material to the award decision.

5. The court accepted that the claimant’s application was not a mere fishing exercise in relation to the evaluators’ and moderators’ comments and score sheets. It rejected or limited the other requests because they were insufficiently focused, unnecessary, unsupported by the evidence, or more appropriately matters for later standard disclosure.