GEM Environmental Building Services Ltd v London Borough of Tower Hamlets [2016] EWHC 3045 (TCC)

This was an application for specific disclosure made by GEM Environmental Building Services Ltd (“GEM”) from the defendant local authority (“Tower Hamlets”) that raised issues concerning the approach to early disclosure in procurement cases as set out in Roche Diagnostics Ltd v The Mid-Yorkshire Hospitals NHS Trust [2013] EWHC 933 (TCC).

Background

Tower Hamlets started a procurement process for works to the heating and water tanks at 22,000 dwellings within its housing stock. GEM submitted its tender for the works and was initially told by Tower Hamlets that “it is the intention to recommend your tender for acceptance.” However, the procurement exercise was subsequently abandoned by Tower Hamlets over fears that it would infringe on its statutory obligations to produce best value for the council.

Tower Hamlets thereafter communicated its intention to commence a new procurement process to GEM, in response to which GEM issued proceedings alleging that the abandonment was a breach of the Public Contracts Regulations 2006. GEM sought an order setting aside the abandonment decision along with an order that it should be awarded the heating/water tanks contract, and made an application for specific disclosure of the following documents:

i). “the documentation that was before the decision maker who took the abandonment decision notified to our client in the letter dated 14 September 2016”; and

ii). “any report/advice concerning: (a) our client’s tender and (b) the abandonment of the procurement.”

Tower Hamlets thereafter withdrew the abandonment decision and told GEM that a fresh decision would be taken at the next meeting of the Competition Board, 3 days after the date listed for the specific disclosure hearing in the TCC, and invited GEM to stay proceedings. GEM refused to stay and sought disclosure of two further categories of document from Tower Hamlets:

iii). “the minutes of prior meetings of Competition Boards that discussed our client’s tender”; and

iv). “all documents held by the defendants regarding other potential procurement/commissioning arrangements for work within the scope of the contracts.”

In a further effort to avoid the costs of the hearing, Tower Hamlets voluntarily agreed to provide (i), (ii)b), (iii) and (iv), but agreement concerning (ii)a was not reached in time and the hearing went ahead. Coulson J therefore had to determine whether GEM’s application for specific disclosure of (ii)a should be granted alongside the wider issue of whether GEM’s application for early disclosure was in any event unjustified.

The Decision

Coulson J started by setting out the broad principles that apply to applications for early specific disclosure in procurement cases as summarised in Roche, of which the first two were relevant to the current dispute:

a). “An unsuccessful tenderer who wishes to challenge the evaluation process is in a uniquely difficult position. He knows that he has lost, but the reasons for his failure are within the peculiar knowledge of the public authority. In general terms, therefore, and always subject to issues of proportionality and confidentiality, the challenger ought to be provided promptly with the essential information and documentation relating to the evaluation process actually carried out, so that an informed view can be taken of its fairness and legality.

b) That this should be the general approach is confirmed by the short time limits imposed by the Regulations on those who wish to challenge the award of public contracts. The start of the relevant period is triggered by the knowledge which the claimant has (or should have) of the potential infringement. As Ramsey J said in Mears Ltd v Leeds City Council, “the requirement of knowledge is based on the principle that a tenderer should be in a position to make an informed view as to whether there has been an infringement for which it is appropriate to bring proceedings“.

Although Coulson J was conscious to affirm the legitimacy of the approach in Roche and the importance of ensuring that “the playing field is made as level as possible, as quickly as possible” in such cases, he considered that the circumstances of the current case were “far away from the risks of unfairness and detriment identified in Roche.” There were a number of grounds in support of this conclusion:

1. The decision to abandon the procurement had already been withdrawn and was of no further relevance;

2. Tower Hamlets had made plain that the uncertainty created by the withdrawal of the abandonment decision would not last, and so it was not sensible for GEM to waste the parties’ and the court’s time considering an application that could be rendered academic within 72 hours; and

3. Whatever the result of the fresh decision at the next meeting of the Competition Board, the original decision to abandon the procurement would be of irrelevance going forward.

Accordingly, Coulson J agreed with counsel that the application was needlessly aggressive, misconceived, unnecessary and unjustified in the light of the Roche test, and this was therefore not a case where Roche applied. The application for specific disclosure was therefore dismissed.