Early disclosure of evaluation documents in public procurement dispute

In Roche Diagnostics Ltd v Mid Yorkshire Hospitals NHS Trust [2013] EWHC 933 (TCC), an unsuccessful tenderer was entitled to both specific and pre-action disclosure in a public procurement dispute in relation to two related contracts. Coulson J provides important guidance on how the courts will approach early applications for disclosure in public procurement disputes.

The claimant, Roche Diagnostics Ltd, and the defendant, the Mid Yorkshire Hospitals NHS Trust, were involved in a public procurement dispute in relation to the letting of a managed service contract (MSC) for the provision of laboratory services at three hospitals.

After discovering that it had been unsuccessful in its bid for the MSC, the claimant asked for information relating to the evaluation process. The defendant sent through a number of spreadsheets. The documents were ‘secondary’ because they had been created after the evaluation process as a means of explaining how it had been carried out. The spreadsheets were inconsistent and contained manifest errors. Consequently, the claimant lost confidence in the evaluation process carried out by the defendant and commenced litigation proceedings…

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