The High Court (HHJ Pearce KC) has given judgment addressing a number of points of interest regarding the duty to provide adequate reasons and Roche early disclosure of evaluation documents in a substantial dispute relating to a £260m NHS estates contract awarded by a ‘call-off’ procedure under a framework agreement.
The Claimant (“OCS”) was the incumbent. Following the call-off competition it was informed in the award letter (“the Award Letter”) that its bid was unsuccessful, with the winning bid (submitted by Mitie) achieving an overall aggregate score that was only 0.02% higher.
While some feedback addressing the published award and scoring criteria were provided for OCS’s scores in the Award Letter, a different approach was taken by the Defendant (“CHP”) in respect of feedback for Mitie’s scores.
The only feedback provided in the Award Letter for Mitie’s scores comprised some brief, solely positive, comments about each of the Mitie responses. The Award Letter also failed to provide any reasons at all for the score awarded to Mitie in respect of one award criterion (Q13).
OCS was concerned by the content of the Award Letter and issued proceedings (i) raising detailed complaints about the substantive scoring of two of the quality award criteria (Q6 and 13), and (ii) also alleging that the feedback provided in the Award Letter, particularly in respect of the Mitie scores, was deficient and inadequate to discharge the duty of transparency and requirement to provide adequate reasons.
OCS applied for specific disclosure of the contemporaneous evaluation records relating to the evaluation of the responses to the quality criteria.
CHP resisted the disclosure application, contending that: (i) it should only be required to provide Roche disclosure in respect of Q6 and 13, where OCS had pleaded detailed substantive complaints, (ii) the duty to provide reasons in respect of the award of a contract called-off under a framework, which is exempt from the requirement imposed by the PCR 2015 to issue an award notification, did not require the provision of reasons for each score awarded, and (iii) in any event, in the absence of any detailed scoring challenge to the scoring other than in respect of Q6 and 13, OCS was engaged in a ‘fishing expedition’.
Following detailed consideration of the authorities regarding the nature and extent of the duty to provide adequate reasons that flows from the principle of transparency, and the Court’s existing case-law regarding Roche early disclosure, the Court held that OCS’s disclosure application was well founded.
Amongst other things, the Court held that:
(i) the principles regarding the duty to provide adequate reasons identified in cases such as Lancashire were applicable to the framework call-off in issue in the proceedings,
(ii) the provision of a summary of certain positive features of each of the Mitie responses, without any information regarding weaknesses or concerns arising from the responses, was insufficient to constitute adequate reasons or discharge the duty of transparency;
(iii) the specific complaints raised by the Claimant in respect of the scoring of Q6 and 13 raised clearly arguable issues regarding the lawfulness of the Defendant’s process. This was relevant when considering whether Roche disclosure was justified;
(iv) while the Defendant sought to criticise the extent of the particulars provided by the Claimant in respect of the reasons challenge, one reason for any lack of detail was the inadequate nature of the reasons provided with the Award Letter.
Joseph Barrett of 11KBW appeared as sole counsel for the successfully Claimant, OCS (instructed by Sara Sayer of Birketts).
The Defendant was represented by Azeem Sutterwalla of Monckton Chambers (instructed by Capsticks).
A copy of the judgment will be posted here when available.