Judge cites special circumstances in allowing claimant to call expert witness in tender evaluation dispute

A claimant supplier can call on expert witnesses in a procurement dispute with the Secretary of State for Health and Social Care, Mr Justice Fraser has ruled in a case management hearing.

He said in Bop-Me Ltd v Secretary of State for Health and Social Care (Rev 1) [2021] EWHC 1817 (TCC) that while it was unusual to call an expert in tender evaluation cases there were special circumstances that justified this. The case itself is due to be heard in April 2022.

Bop-Me supplies the type IIR surgical mask which is used by care homes and hospitals to protect against viruses.

It alleged breaches by the Secretary of State of Regulation 26 of the Public Contracts Regulations 2015 including failures to advertise, failures to allow competition, and the use of the so-called ‘VIP Lane’ for preferred suppliers.

Article continues below...

The Secretary of State maintained the procurement was permitted in the way it took place due to extreme urgency and that the impact of the pandemic on stocks of personal protection equipment could not have been foreseen.

He also said Bop-Me’s offer to supply masks was invalid because it failed to supply certain information, and did not pass a technical evaluation stage.

Bop-Me in response maintained that the Secretary of State fundamentally misunderstood his own specification and made errors in assessing its offer.

The company said it wanted to call expert evidence on various issues connected with the technical assessment.

At the case management hearing, Fraser J noted: “Permission for expert evidence is rarely given in procurement cases.”

He cited though a ruling by Coulson J, which said experts could be used where they were required to allow the court to reach a proper view on the issues of manifest error or unfairness.

Fraser J said this applied as the court would be asked to consider whether the testing reports were compliant and what technical information should be included in a testing report, and how.

“The contents of an industry compliant testing report, and whether one was provided in this case, is not a matter upon which the court will have any knowledge of its own,” the judge said.

“Expert evidence on the industry standard and expected contents of testing reports under the British Standard (which does not prescriptively identify the contents) will assist the court in determining whether the Secretary of State was entitled to conclude that the claimant's offer was defective in this regard.”

Fraser J therefore allowed Bop-Me to use expert witnesses but limited to this specific aspect of the case.

Mark Smulian

(c) HB Editorial Services Ltd 2009-2020