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Education e-briefing: Procurement - Technology and Construction Court Guide

  • United Kingdom
  • Education - Briefings

28-07-2017

Earlier this week a new Appendix H to the Technology and Construction Court Guide was published which provides guidance on procedures for public procurement cases (the “Guide”). Although this detailed procedural guidance is likely to prove useful in ensuring the efficient progress of public procurement cases, both bidders and contracting authorities (which can include education institutions) are most likely to be interested in the guidance on pre-action conduct and the steps parties should take to facilitate the resolution of disputes at an early stage contained within the Guide.

Contents of the Guide

It is widely recognised that public procurement cases, particularly those involving claims which seek to set aside a contract award decision, raise singular procedural issues and difficulties. The Guide is intended to provide useful guidance for practitioners on procedures to be followed in relation to such issues, including the protection of confidentiality in commercially sensitive documents, joining interested parties into proceedings, the applicability of provisions relating to cost budgeting and e-disclosure in fast-moving claims and the procedure to follow when commencing claims under the procurement regulations and claims for judicial review at the same time. The Guide also sets out details of a recommended pre-action process for parties to follow in a procurement dispute. This is likely to be of particular interest to bidders and authorities.

Recommended Pre-Action Process

The Guide recognises that the tight deadlines within which procurement claims must be commenced means it will often not be possible to comply with the Pre-Action Protocol, and the parties are not bound to do so. However, paragraph 5 of the Guide contains a recommended pre-action process designed to help parties resolve claims before (or at an early stage of) proceedings.

The key features of the pre-action process is its emphasis on the provision of key decision materials at a very early stage and the need for parties to co-operate on issues such as measures to facilitate the exchange of confidential information and extensions of time to enable claimants to consider the information provided. By complying with this suggested Pre-Action Process, it should not be necessary for a disappointed tenderer to have to issue a claim simply to obtain early specific disclosure.

The need for authorities to provide key decision documents at a very early stage is repeated at paragraph 25 of the Guide, which goes on to clarify that this may include the provision of the documentation referred to in Regulation 84 of the Public Contracts Regulations 2015.

Comment

Although the Guide provides useful guidance on the management of public procurement claims, it also recognises that this is a rapidly developing area of the law and emphasises the importance of practitioners being aware of the most recent relevant case law.

In this regard, recent case law developments regarding the early disclosure of documents, are likely to be of particular interest to parties involved in public procurement disputes. These appear to be moving in the direction of a requirement upon authorities to adopt a much more open approach at an early stage in proceedings. The most recent example of this can be found in the case of Alstom Transport UK Ltd v London Underground Ltd & Anor [2017] EWHC 1584 (TCC), in which Stuart-Smith J stated that in his opinion, applications for early specific disclosure should be determined by applying the test set out by Coulson J in Roche Diagnostics Limited v The Mid Yorkshire Hospitals NHS Trust at [16]-[20], as opposed to the somewhat more restrictive approach advocated by Akenhead J in relation to applications made in order to obtain documents to help prepare for applications to lift the automatic suspension.

This less restrictive approach adopted by the court when considering applications for the early disclosure of key documents is consistent with the Pre-Action Process and guidance regarding the disclosure of documents contained in the Guide. As such, the Guide is likely to prove useful to disappointed tenderers seeking information / documentation to help them understand the outcome of a procurement process and whether they may have a legitimate basis for challenging the decision. It will also serve as a reminder for authorities that key documents (including Regulation 84 reports) may have to be disclosed to disappointed tenderers at an early stage, meaning care should be taken to ensure the content of such reports is accurate, transparent and reflective of a fair process conducted in accordance with the published procurement documents.

A copy of the Guide will be published in the next supplement to the White Book but it is already applicable and available online, including here.

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