Public contracts – Claimants tendering for development contract from defendant market authority

By Development Ltd and others v Covent Garden Market Authority: Queen's Bench Division, Technology and Construction Court: 28 September 2012

The defendant was a statutory corporation which owned a site where the New Covent Garden Market had operated. The defendant wished to redevelop the site and began a tender process. The claimant companies were bidders for the development contract. The claimants had reached the third of three stages of the tendering process. However, the defendant notified the claimants that it had been unsuccessful and the defendant intended to award the development contract to a rival bidder. The claimants subsequently sought judicial review of that decision. In the substantive proceedings, the claimants contended that the defendant's evaluation of the respective bids had contained a number of manifest errors, particularly in relation to planning matters.

In the alternative, the claimants contended that the decision had been unfair and/or arose as a result of the unequal treatment of their bid. The claimants wished to rely on expert evidence which would answer planning finance issues which the claimants had with respect to the defendant's decision not to award the claimants with the development contract. In the instant proceedings, the claimants sought an order permitting them to adduce expert evidence in relation to both planning and finance issues at the trial of the substantive action, having identified the proposed questions for the experts.

The matter which fell to be decided was: (i) whether, in general, expert evidence would be adduced in public procurement cases, such as the instant proceedings; or alternatively (ii) whether the technical background of the instant case was so complex that explanatory expert evidence was required; and/or the instant case was an unusual case where expert evidence on some or all aspects of the tender evaluation process was required in order to allow the court to reach a proper view on the issues of manifest error or unfairness. Consideration was given to the Public Contracts Regulations 2006, SI 2006/5. The claimants' application would be refused.

(1) Where the issues were concerned with manifest error or unfairness, expert evidence would not generally be admissible or relevant in judicial review or procurement cases. However, it would go too far to say that expert evidence could never be admissible in public procurement cases concerned with manifest error. In some cases, it might be required by way of technical explanatory evidence. There might be other cases where such evidence was both relevant and necessary to allow the court to reach a conclusion on manifest error. That might be particularly so where the particular issue was specific and discrete (see [20], [21] of the judgment).

Expert evidence would not generally be admissible or relevant: (i) partly because the court was carrying out a limited review of the decision reached by the relevant public body and was not substituting its own view for that previously reached; (ii) partly because the public body was likely either to be made up of experts or would have taken expert evidence itself in reaching the decision; and (iii) partly because such evidence might usurp the court's function (see [20] of the judgment). Harmon CFEM Façades (UK) Ltd v Corporate Officer of the House of Commons [1999] All ER (D) 1178 considered; Henry Brothers (Magherafelt) Ltd v Department of Education for Northern Ireland [2011] NICA 59 considered; Newcastle upon Tyne Hospital NHS Foundation Trust v Newcastle Primary Care Trust [2012] All ER (D) 310 (Jul) considered.

(2) The questions the claimants had identified for the experts had not been designed to elicit general technical explanations, but had been questions which went to the heart of the dispute between the parties, namely the tender and evaluation itself. The real issue was, therefore, despite the general rule, whether the instant case was an unusual case where the court should admit opinion evidence as to the way the tender process unfolded and the merits or otherwise of the defendant's evaluation of the respective bids.

The instant case was not an unusual case where the general rule that such expert evidence was inadmissible in a dispute of that sort should not be applied. The limited factual investigation to be undertaken by the court, at the substantive hearing, would not be assisted by such expert evidence (see [27], [36] of the judgment).

In the instant case, expert evidence would be neither admissible nor relevant and the claimants' application to adduce such evidence would be refused (see [37] of the judgment. R (on the application of Lynch) v General Dental Council [2003] All ER (D) 171 (Dec) considered; Letting International Ltd v Newham London Borough Council [2008] LGR 908 considered.

Sarah Hannaford QC (instructed by Hogan Lovells) for the claimants; Nigel Giffin QC and Jason Coppel (instructed by Eversheds) for the defendant.