Citation: [2024] EWHC 3039 (TCC)
This judgment concerned the Claimant’s (“RHH”) application for early specific disclosure in relation to the tender evaluation process, and the Defendant’s (“OGL”) application to lift the automatic suspension. Both parties’ applications were successful. Rhodri Williams KC and Tom Walker (instructed by Simons Muirhead Burton LLP) acted for the Claimant (“RHH”).
Background
The dispute arose out of a procurement exercise conducted by OGL, a charitable registered provider of social housing with a portfolio of around 47,000 properties across the Midlands and East and South-East of England. The procurement was in relation to the provision of domestic and commercial heating services (“the Procurement”).
RHH was a limited company specialising in the installation and maintenance of domestic and commercial heating and water systems. It was unsuccessful in its bid for the domestic heating contracts (Lots 1.1 and 1.2), which were awarded to Aaron Services Ltd. RHH brought proceedings to challenge OGL’s decision in the Procurement on three grounds:
- that there was a conflict of interest in relation to a previous employee of OGL, who had subsequently become a board director of the parent company of the successful tenderer after the Procurement had begun but before the tender submission deadline;
- that OGL had committed manifest errors and/or breached its obligation to act with transparency when scoring RHH responses to the quality questions; and
- that OGL had breached its obligation of equal treatment in awarding Aaron the maximum score of 5 (“excellent”) on its quality response, which RHH alleged demonstrated the alleged conflict of interest.
The commencement of proceedings triggered the automatic suspension pursuant to Regulation 95 of the Public Contracts Regulation 2015 (“the 2015 Regulations”), preventing OGL from entering into the new contracts. The Defendant made an application to lift the automatic suspension pursuant to Regulation 96 of the 2015 Regulations.
RHH sought disclosure of the following categories of documents relating to the assessment of its tender:
- (1) Evaluation notes of the individual evaluators;
- (2) Moderation notes of the individual moderator;
- (3) Notes and/or minutes of all evaluators’ meetings, including moderation meetings;
- (4) Documents produced for the purposes of the training, guidance or instruction of the evaluators/moderators, including any model answers that were drafted; and
- (5) Documents relating to any actual or potential conflict of interest and/or any steps taken to address any actual or potential conflict of interest.
Decision (Roger ter Haar KC)
Both applications granted.
Application to lift the automatic suspension
- Serious issue to be tried: The claim passed the low threshold to show that there was a serious issue to be tried. It at least called into question exactly what the role of Ms Nicklin had been with the Defendant, and what information she had which might have been of use to the ultimately successful bidder. The particulars of claim set out a case in respect of the scoring challenge which was neither frivolous nor vexatious.
- Damages as an adequate remedy for the Claimant: Damages would be an adequate remedy for RHH if its challenges succeeded. It was a moderately substantial company and a subsidiary of a substantial group with a worldwide reach. The potential contracts with OGL were substantial, but if awarded would not have been a dominating part of its turnover. Given the size of RHH and of the group of which it was part, it did not have an arguable case for damages for loss of reputation. The number of uncertainties or variables to be brought into the calculation of the lost chance did not prevent damages from being an adequate remedy.
- Outcome: There were no exceptional circumstances to justify departure from the normal course. The application to lift the suspension succeeded.
Application for early disclosure
- The relatively limited disclosure of documents in categories (1) to (4) was appropriate as it would enable RHH to consider whether its claim was appropriately pleaded, and to assess whether it was appropriate to proceed with the action at all. Disclosure was ordered in relation to documents in category (5) in respect of any conflict of interest arising out of the role of Ms Nicklin.
The judgment can be found here.
