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Mind the gap – no room for expert evidence in procurement disputes?

Tuesday January 15th, 2013

Is expert evidence admissible in public procurement challenge cases? David Hansom from Veale Wasbrough Vizards looks at the recent case of BY Development and Others v. Covent Garden Market Authority and the impact of the decision.


Often challengers will want to ‘throw the kitchen sink’ at a contracting authority when making a procurement claim. The recent case of BY Development and Others v. Covent Garden Market Authorityis a useful reminder, and another authority-friendly decision, of the limited review role of the Court in looking at such challenges.

David Hansom

David Hansom

The claimant had been unsuccessful in its tender for the redevelopment of the New Covent Garden Market, and sought to challenge the award. This was on the basis of alleged manifest errors in relation to how the evaluation team had evaluated the planning and finance aspects of the tenders. The claimants made an interim application to rely on expert evidence to support their claim and were asked to identify the specific issues they felt needed such expert evidence. The claimants submitted a form of questions to put to the expert.

The Court held that the questions that the claimant wished to put to the experts explicitly demonstrated a desire to challenge the evaluation process itself rather than the criteria used with the expert giving a view on each stage. The claimants did not contend that the criteria were lacking in the required transparency but, effectively, sought to substitute the experts’ view for that of the defendant. The Court held that this was not the function of the Court, and that the expert evidence was not admissible.

This is an interesting decision and may come as a surprise to some readers due to previous case law. The claimant put forward cases such as Harmon CFEM Facades (UK) Limited v. The Corporate Officer of The House of Commons 1999 in which expert evidence had been allowed, and Henry Brothers (Magherafelt) Ltd v Department of Education for Northern Ireland [2011] NICA 59 in which expert evidence was admissible on the applicability of one of the relevant criteria. However, the Court held that such examples demonstrated unusual circumstances where expert evidence was admissible on the particular facts of the case.

Where the issue concerned relates to manifest error or unfairness, expert evidence is not generally admissible or relevant in judicial review or public procurement cases. The Court outlined three reasons for this: firstly, the Court would not substitute its own view for that previously reached by the contracting authority; secondly, the public body was likely to have been made up of experts or would have taken expert advice in reaching its decision; and thirdly, because allowing expert evidence may usurp the Court’s function.

However, the Court stated that it would be going too far to say that expert evidence is never admissible. So, as with much in public procurement, this case is helpful but by no means a conclusive decision on this issue.


David Hansom


Twiter: @vwvlawfirm

LinkedIn: David Hansom

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