Hersi & Co Solicitors, R (On the Application Of) v The Lord Chancellor

In a public procurement challenge, a contracting authority is required to seek clarification only in exceptional or limited circumstances. The tender must contain an ambiguity or simple, serious and manifest error which has an evident explanation and can be resolved quickly without creating a new or improved tender. A blank answer to a specific question will ordinarily be treated as a failure to make the required commitment, rather than an ambiguity.

Equal treatment requires comparison with tenderers in the same position and in respect of the same question or issue. It does not require a general review of how every part of every tender was handled. The court will respect evaluative judgment unless there is a manifest error, but there is no margin of appreciation permitting departure from equality, transparency or objectivity.

The claimant participated in a 2009–2010 procurement exercise for publicly funded immigration and asylum legal services. It answered the first three Selection Criteria questions but left Questions 4 to 7 blank, receiving 18 points and failing to secure a contract.

The claimant sought judicial review, arguing that the defendant should have sought clarification, inferred answers from other parts of the tender, or treated other applicants more favourably. It also claimed damages and relied on over 120 alleged comparators. The principal issues were whether the non-answers required clarification, whether the defendant breached equal treatment obligations, and whether the wider comparator exercise was legally relevant.

1. The claim for judicial review was dismissed. The claimant’s damages claim was also incapable of succeeding on the evidence.

2. The governing principles were those stated in Lion Apparel Systems Ltd v Firebuy Ltd [2007] EWHC 2179 (Ch) and J B Leadbitter & Co Ltd v Devon County Council [2009] EWHC 930 (Ch). The contracting authority had to act equally, transparently and objectively. The court’s review extended to correctness of fact and manifest error, but evaluative judgment attracted a margin of appreciation.

3. A duty to seek clarification arises only in exceptional or limited circumstances. It may arise where the tender is ambiguous and the surrounding circumstances indicate a simple explanation capable of easy resolution, or where there is a simple, serious, material and manifest error. Clarification is impermissible where it would amount in reality to a new or improved tender. The court rejected the claimant’s proposed test that a change was acceptable unless it fundamentally altered the nature of the bid.

4. Questions 5 to 7 sought future contractual commitments, not merely information about the claimant’s existing organisation. The blank answers were not ambiguous and did not conflict with other tender information. Asking questions which would have elicited new commitments and increased the claimant’s score would have breached equal treatment.

5. The defendant had treated other applicants who had left the same questions unanswered in the same way. The wider comparisons relied on by the claimant were irrelevant or disproportionate. Proper comparators were tenderers treated differently on the same question or in the same materially comparable situation, not applicants whose different tender components had been handled differently.

6. The claim concerning Question 4 could not affect the result because the claimant accepted that it did not employ a Level 3 caseworker. Failure on Question 5 was independently fatal, since the claimant could then have scored no more than 31 points, below the minimum successful score of 33.