Groupm UK Ltd v Cabinet Office
| Jurisdiction | England & Wales |
| Judge | Mr. Justice Akenhead |
| Judgment Date | 14 October 2014 |
| Neutral Citation | [2014] EWHC 3401 (TCC) |
| Docket Number | Case No: HT-14320 |
| Court | Queen's Bench Division (Technology and Construction Court) |
| Date | 14 October 2014 |
[2014] EWHC 3401 (TCC)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
The Rolls Building
7 Rolls Buildings
Fetter Lane
London EC4A 1NL
Mr. Justice Akenhead
Case No: HT-14320
Mr. Michael Bowsher QC and Ms. Anneliese Blackwood (instructed by Freshfields Bruckhaus Deringer LLP) for the Claimant
Mr. Ewan West (instructed by The Treasury Solicitor) for the Defendant
Ms. Valentina Sloane (instructed by Messrs. Slaughter & May) for the Successful Bidder
This is an application by the claimant in these public procurement proceedings against the Cabinet Office, the defendant, for an order for early disclosure of specific documents.
I am not going to go into the detailed background given that this is an extempore judgment but, broadly, the Cabinet Office advertised earlier this year for interest in a project for tendering purposes relating to the provision of media planning and buying services. The appropriate contract notice was published in March 2014. The invitation to tender initially went out on 12 March 2014. Tenders were submitted by at least two companies, the claimant and a company group called Carat. The result was that Carat was successful and the claimant was unsuccessful. The tender was to be on the "most economically advantageous" basis although there were, in effect, pre-qualification requirements to be achieved by all those who were permitted to go through to a full tender.
The Cabinet Office retained a company or organisation called Ebiquity, which is an independent commercial organisation, to evaluate the tenders. As the Particulars of Claim suggest (and I make no final legal finding on this) there is a strong suggestion that the Cabinet Office was making it clear that sustainability of pricing was an important factor. It seems clear on the pleaded case, at least, that sustainability of pricing was to be reviewed and provision was made for, at the very least, a discretion to disallow tenders which contained unsustainable pricing. As I say, I make no findings about what the meaning of the ITT (the invitation to tender) actually was. But that is the pleaded case.
Proceedings were issued by the claimant following it being informed that it had not been successful on 12 September 2014 with Particulars of Claim being served a week later. Essentially, apart from a complaint that the defendant's evaluation of the claimant's tender submissions made certain wrong conclusions about certain parts of two questions which it is said needed to be answered, the primary complaint and breach of the Public Contract Regulations relied upon is essentially that, whilst the claimant's rates and prices were, in effect, sustainable, Carat's rates and prices cannot have been sustainable. The argument that is promoted in the Particulars of Claim relates, broadly, to the pleaded fact that the claimant, it is said, has a much greater market share than Carat and that Carat's prices and rates could not sustainably be less than the claimant's.
Given that confidentiality prevails in a public judgment it would be inappropriate for me to refer to what is pleaded in detail but it is clear, and it is pleaded at Paragraph 50 of the Particulars of Claim, that the claimant was provided by the defendant with information about the overall pricing evaluation of the claimant's tender and Carat's tender. Both in percentage terms and in overall price score terms figures are given. Those figures have been redacted in the version that has been most available. Those are overall figures and they are not broken down figures, rates and prices and the like.
Before the proceedings were issued the claimant, through its then solicitors, had sought further information. It is said that insufficient information was provided by the Cabinet Office and so proceedings were issued on 15 September 2014. Correspondence, I believe, was exchanged and on 25 September the claimants, through their then solicitors, issued the application which is before the court today for early specific disclosure. That was supported by a witness statement of Peter Crossley. Since that time there have been further exchanges between the parties. I am not going to decide if anyone was to blame for the delays arguably which have happened since then. The defence has not yet been served but I understand that the latest date for the defence to be served is this coming Friday, 17 October, so there is no breach of the rules yet on the part of the defendant in serving its defence. But Mr. West, counsel for the Cabinet Office, has indicated in broad terms what the heads of defence are likely to be. I am told (and have no reason to doubt) that there will be a positive assertion that Carat's pricing was sustainable and as, and possibly more importantly from the defendant's standpoint, it will be asserted that in any event Ebiquity, who made the appropriate recommendations, exercised a judgment in their recommendations (later relied upon by the defendant it is said) which contains no manifest error, it being asserted that the test should be in these circumstances there has to be in effect a substantial error and one which is manifest to the defendant and/or arguably the independent agents or sub-contractor it retained to evaluate the tenders. I very much hope that a rather more detailed defence will be given than the brief summary I have set out, but that will be a matter for the defendant.
The Particulars of Claim are, as one would expect from the counsel and solicitors involved, well drafted and reasonably clear as to what the assertions being made actually are. The defendant has issued last week an application under paragraph 47 of the Public Contract Regulations to lift the statutory suspension on the placing of the contract with Carat. This said (although I am told this is the first time the claimant has been aware of this), the Court was informed at the hearing that the Cabinet Office would wish to place the contract at the beginning of the week after next, on or about 27 October 2014. So it has issued its application. The court administration had initially fixed a date for the hearing of 20 October (next Monday) but I have re-fixed that for 23 October because I am told that it will only be towards the close of business today that the defendant will serve its evidence in support of its application.
It is unfortunate, therefore, that this application for specific disclosure is made before the grounds for seeking to lift the suspension are spelled out by way of a witness statement and, as importantly, before the defendant has served its defence. The reason that it is unfortunate is that it is unclear at this stage with any precision as to what is going to be in issue in the case. But Mr. West has at least provided the guts of the substantive defence that is likely to be deployed.
During the course of exchanges between the solicitors and relatively recently the Treasury Solicitor, by letter dated 8 October (six days ago) having considered what was being sought on the application for specific disclosure, said this:
"Regarding your client's application for disclosure, we reiterate that it was made prematurely and without first giving this office the opportunity to consider your requests and to make voluntary disclosure if appropriate.
We have considered your application and the request for specific disclosure in the statement of Peter Crossley. At the date this letter is sent to you, we are still not in receipt of signed confidentiality undertakings on behalf of your client. We...
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Table of cases
...(3) Sa 629 II.11.89 Group Kildey pty Ltd v JM Kelly (project Builders) pty Ltd [2005] QSC 264 III.22.29 Groupm UK Ltd v Cabinet Oice [2014] EWHC 3401 (TCC) I.4.69, I.4.80 Groupm UK Ltd v Cabinet Oice [2014] EWHC 3659 (TCC) I.4.19, I.4.58, I.4.69 Groupm UK Ltd v Cabinet Oice [2014] EWHC 3863......
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Procurement
...Akenhead J; NATS (Services) Ltd v Gatwick Airport Ltd [2014] EWHC 3133 (TCC) at [25]–[30], per Ramsey J; Groupm UK Ltd v Cabinet Oice [2014] EWHC 3401 (TCC) at [18], per Akenhead J; Groupm UK Ltd v Cabinet Oice [2014] EWHC 3659 (tCC) at [12]–[17], per akenhead J; Advanced Business Software ......