Atos Services UK Ltd v Secretary of State for Business, Energy, and Industrial Strategy & Anor
Citation:  EWHC 42 (TCC)
These are ongoing proceedings arising out of the Defendants’ procurement of a new supercomputer for use by the Second Defendant. The Claimant was an unsuccessful tenderer in that process and alleges there were breaches of the Defendants’ obligations under the Public Contract Regulations 2015.
The Claimant sought permission for expert evidence in the field of high performance computing and identified seventeen issues (set out in the judgment) which it submitted should be the subject of such evidence. The Defendants successfully argued that expert evidence should only be admissible as to the explanation of technical terms; the context of the procurement; and the capacities and structures of the relevant computer systems but not as to the equivalence or otherwise between them.
Applying Coulson J’s categories in BY Development & others v Covent Garden Market Authority  EWHC 2546 (TCC), Eyre J held that where a procurement decision was challenged on the basis of manifest error, expert evidence might be necessary to show the materiality or centrality of the error, or to enable the judge to reach a conclusion on the incontrovertibility of the error, but it would not be admissible insofar as it involved the expression of an opinion as to the existence or otherwise of a manifest error.
Further, where a procurement exercise was challenged for failure to satisfy the requirements of equal treatment, transparency and consistency, expert evidence might be admissible if it was necessary to explain technical terms, the context of the procurement exercise, or the circumstances of the industry in question, but anything involving an opinion as to the understanding of a reasonably well-informed and normally diligent tenderer would not be admissible.
Sarah Hannaford QC appeared for the successful Defendants, instructed by Hogan Lovells International LLP.
The full judgment can be found here: https://www.bailii.org/ew/cases/EWHC/TCC/2022/42.pdf
The trial in this case (which was included in The Lawyer’s Top 20 Cases of 2022) is listed for 9 May 2022.