It is not often that we get to hear about the conduct of claims for breach of The Public Contracts Regulations 2006, so it is useful when an application comes to light which gives a glimpse of the court's thinking.
On 28 September 2012, the High Court ruled that, as the issues raised in public procurement disputes are concerned with manifest error or unfairness, expert evidence will not generally be admissible or relevant. The court's purpose in these claims is to review the decision, not to substitute its own view for that of the contracting authority. Accordingly, there are rarely circumstances where expert evidence on what might or might not have happened will be relevant.
The admissibility of expert evidence is not wholly excluded but it will only be permitted where it is required to provide technical explanations or where it will allow the court to reach a conclusion of manifest error.
In the present case, the proposed expert evidence was likely to lead to an exercise where experts effectively re-ran the tender process, commented on each element of the tenders and substituted their own views on the decisions reached.
This guidance is useful because it demonstrates that a challenge under the Regulations is more about process and review than substitution of one view for another. In that respect, it closely mimics judicial review. Leaving to one side the important practical effects of limiting the use of evidence in these cases, it also ensures a substantial saving in cost if experts can be kept out of court and the matters in dispute are tightly defined.
Anyone interested in reading more should search for BY Development Ltd and others v Covent Garden Market Authority [2012] EWHC 2546 (TCC).