Geodesign Barriers Limited vs The Environment Agency
Citation:  EWHC 1121 (TCC)
Nature of case:
Geodesign Barriers, the claimants, were unsuccessful tenderers for a temporary flood barriers system contract let by the defendant, the Environment Agency. Geodesign brought a claim alleging that the Agency had committed manifest errors in the evaluation of the winning tender. The Agency denied these errors of assessment and asserted that Geodesign could not have won the contract in any event because four other tenders, besides the winning tender, had been scored higher than Geodesign’s.
The claimants sought orders for the specific disclosure of evaluation documents, the identities of the four other tenderers and permission to amend its particulars of claim following disclosure.
Coulson J observed that ultimately applications for specific disclosure of documents must be decided by balancing “the claiming party’s lack of knowledge of what actually happened” against “the need to guard against such an application being used simply as a fishing exercise, designed to shore up a weak claim, which will put the defendant to needless and unnecessary cost”. In this case, he found that the absence of a contemporaneous evaluation report raised question marks as to the transparency of the tender process and made it difficult for unsuccessful bidders to understand whether it was conducted fairly.
He made no order for the production of evaluation reports as the evidence was clear that these did not exist, but made it clear that the defendant could not produce these later. He ordered that evaluator guidance and any other evaluation documents should be disclosed as well as the bids of the four unsuccessful tenderers, which were put in issue by the causation defence. These would be disclosed into a confidentiality ring. The identity of the other tenderers would not be revealed, since it was irrelevant. An expert advisor, as well as legal advisors, could be added to the confidentiality ring, but the judge emphasised that this should not be seen as the first step towards the admission of expert evidence. The court would not give directions as to the amendment of the particulars of claim until the substance of the intended amendments was known.