OCS Group UK Limited v Community Health Partnerships Limited

Early specific disclosure in a public procurement challenge is governed by the ordinary requirement to identify the pleaded issues, but the court must account for the unsuccessful tenderer’s limited knowledge of the evaluation process.

The applicant must show an arguable or prima facie case and demonstrate that the requested documents are needed to assess whether proceedings should be pursued or particularised. Disclosure must remain proportionate, tightly drawn and directed to material showing how the evaluation was actually performed. A generic complaint of lack of transparency is insufficient, but arguable errors in identified scoring, combined with inadequate reasons for the successful tenderer’s score, may justify broader disclosure.

The claimant, an incumbent cleaning-services provider, challenged the proposed award of a substantial public-services contract by the defendant to Mitie. The claimant’s score was marginally below Mitie’s. It alleged inadequate reasons and identified particular concerns concerning the evaluation of questions 6 and 13.

The claimant sought specific disclosure under Civil Procedure Rules 1998 Part 31.12, including outstanding evaluation records and drafts of the report required by regulation 84 of the Public Contracts Regulations 2015. The defendant argued that the application was a fishing expedition and that sufficient reasons had been provided. The central issue was whether the Roche principles justified early disclosure on the pleaded and presently available material.

1. The application for specific disclosure was granted, broadly in the terms sought. The claimant established an arguable prima facie case concerning the evaluation of questions 6 and 13, and the requested disclosure was sufficiently focused and proportionate.

2. Applications in procurement cases engage a special regime because the contracting authority has substantially greater knowledge of the evaluation process. That does not displace the general approach in Harrods Ltd v Times Newspaper Ltd, namely that disclosure must be related to the factual issues emerging from the pleadings.

3. The Roche principles require the court to consider the individual merits of the application. The unsuccessful tenderer should ordinarily receive promptly the essential information and documentation showing how the evaluation was actually performed, but the court must guard against a fishing exercise and must balance the parties’ competing interests.

4. The claimant’s lack of detailed pleading was relevant because it resulted from its lack of access to the evaluation material. The court should not demand particularity which the disclosure regime itself prevents the claimant from achieving. The claimant’s specific complaints about questions 6 and 13 were sufficient to support broader disclosure.

5. The reasons given for Mitie’s scores were inadequate. Although the award letter identified characteristics and relative advantages, it did not explain why Mitie received 75 rather than full marks. Without some indication of the weakness preventing a higher score, the claimant could not assess whether the evaluation was lawful or plead its case meaningfully. This failed the basic requirement of transparency.

6. The fact that the claimant had not criticised every aspect of its own scoring did not justify withholding its evaluation records. Procurement evaluation is comparative; a meaningful challenge requires knowledge of whether both bids were correctly evaluated.

7. The costs of the application were summarily assessed at £42,275, including court fees and VAT. No order was made concerning two additional costs components because the relevant statements had not been served in accordance with the applicable procedure. Permission to appeal was refused because, notwithstanding the possible wider importance of the issue, the decision was a case-management decision and an appeal would risk delaying the procurement proceedings.

Not an appeal. The judgment determined the claimant’s application for specific disclosure and subsequently dealt with costs and the defendant’s application for permission to appeal.