Joseph Barrett successful as CoA refuses PTA and provides additional guidance on Roche disclosure and transparency in framework call-offs


The Court of Appeal (Coulson LJ) refused permission to appeal and provided further guidance on the scope of the duty to provide adequate reasons and Roche early disclosure of contemporaneous evaluation documents, in the context of a challenge under the Public Contracts Regulations 2015 to the award of a £260m NHS estates contract.

The High Court had previously held that the NHS Defendant was required to disclose records of the entirety of its quality related evaluation, notwithstanding that specific scoring challenges were pleaded only in relation to 2 of the 12 quality related award criteria.

The Defendant sought permission to appeal, contending that the High Court had applied an overly broad approach to the duty of transparency and the provision of Roche early disclosure in a call-off award under a framework contract.

The Court of Appeal (Coulson LJ) refused PTA, and provided further important guidance on the scope of the duty of transparency in the context of framework call-offs and the application of Roche early disclosure principles (which Coulson LJ himself authored as a High Court Judge).

Joseph Barrett of 11KBW acted for the successfully Respondent to the appeal, OCS (instructed by Sara Sayer of Birketts).

11KBW will shortly be providing a webinar addressing the implications of the High Court and Court of Appeal decisions for contracting authorities and procurement challengers.