ATOS SERVICES UK LIMITED v THE SECRETARY OF STATE FOR BUSINESS, ENERGY, AND INDUSTRIAL STRATEGY

In procurement challenges alleging manifest error or unfairness, expert evidence is ordinarily confined to explaining technical concepts, the procurement context and relevant industry matters. It may exceptionally extend further where the court truly needs it to reach a proper conclusion on manifest error. Potential helpfulness or desirability is insufficient.

Experts must not give opinions on the very issue for determination, such as whether the contracting authority made a manifest error, whether systems were architecturally equivalent, or how a reasonably well-informed and normally diligent tenderer would have understood the tender requirements. Those questions remain for the court.

The claimant was an unsuccessful tenderer in a procurement exercise for a new supercomputer for the Meteorological Office. It alleged breaches of the Public Contract Regulations 2015, including manifest error, lack of transparency and consistency, application of undisclosed requirements, and disproportionality.

The claimant sought permission to adduce expert evidence in seventeen areas concerning high-performance computing, the systems proposed, porting, development work and architectural equivalence. The defendants accepted that some technical explanatory evidence was appropriate but opposed evidence addressing the merits of the evaluation. The central issue was the proper boundary between admissible technical assistance and expert opinion that usurped the court’s function.

1. Application determined. Permission was granted for expert evidence on questions 1, 2, 3, 4, 5, 8 and 11 in the form set out in the Annex. Permission was refused for the remaining proposed questions.
2. The governing approach was that set out in BY Development & others v Covent Garden Market Authority [2012] EWHC 2546 (TCC). In procurement challenges based on manifest error or unfairness, expert evidence is generally inadmissible. It may be admitted exceptionally where it is required to explain technical concepts or where the court needs it to reach a proper conclusion on manifest error.
3. The case must be truly exceptional before evidence in the second category is admitted. The court must genuinely need the evidence to perform its limited reviewing function. Evidence which is merely relevant, helpful or desirable is insufficient. Expert evidence remains admissible where it identifies technical matters that form part of the reasoning chain, including materiality or technical context, but not where it gives the expert’s opinion on the ultimate question for the court.
4. The court alone had to determine whether the proposed systems were architecturally equivalent and whether the defendants’ evaluation involved manifest error. Expert evidence could explain the systems’ structures, capacities, performance and technical terminology, but could not express an opinion on architectural equivalence, the correctness of the evaluation, or how a reasonably well-informed and normally diligent tenderer would understand that phrase.
5. A manifest error concerned both materiality and incontrovertibility. Expert evidence might show how an alleged technical error affected the reasoning or why it was said to be erroneous. The expert could not opine that the error was manifest, because that remained a judicial question.
6. For transparency, equal treatment and consistency challenges, the court applies the hypothetical standard of the reasonably well-informed and normally diligent tenderer. Expert evidence may place the court in the technical context of that tenderer, but may not determine the tenderer’s understanding.
7. The parties were directed to submit a shortened timetable for the permitted expert evidence at or before the further case management conference.