The risk of fishing expeditions in the context of public procurement law challenges: a price worth paying to ensure transparency and equality of treatment? (Bombardier v Merseytravel)

• United Kingdom

• Competition, EU and Trade - Competition e-briefings
• Public procurement

23-05-2017

Introduction

In a recent judgment on an application to vary consent orders relating to the establishment of a confidentiality ring (Bombardier Transportation UK Limited v Merseytravel [2017] EWHC 726 (TCC)), the court decided that despite some concerns about the possible risk of "creep" and "an unjustified fishing expedition" a claimant in the position of Bombardier was entitled to have appropriate access to the successful tenderer's bid so as to be in a position to investigate fully the contracting authority's comparative treatment of the tenders, either to confirm existing unequal treatment concerns, or to establish new freestanding allegations.

The court's decision

Bombardier’s claim was initially based upon allegations relating to the way in which Merseytravel had conducted the procurement process and how its tender had been scored. No complaint was made in relation to the scores awarded to the successful tenderer (Stadler).

During proceedings, Stadler’s tender documents were disclosed into a confidentiality ring which included members of Bombardier’s legal team. Bombardier subsequently raised allegations of unequal treatment and sought an order amending the terms of the confidentiality ring to enable experts appointed by Bombardier, together with a limited number of Bombardier’s employees, to inspect Stadler’s tender in order to understand properly Merseytravel's comparative treatment of the tenders submitted by Bombardier and Stadler.

Stadler had objected to the order sought by Bombardier and Merseytravel sought to protect Stadler's position by resisting Bombardier’s application. The matter proceeded to an interim hearing at which the Court considered concerns raised by Merseytravel that Bombardier was “seeking unfairly to expand the claim by trawling through the successful Stadler tender and its evaluation, seeing if ‘something might turn up’ in order to justify a separate complaint of unequal treatment”. The Judge expressed a degree of sympathy with these concerns, recognising that, an unsuccessful tenderer is not in a position to complain about the comparative scoring of the successful tender unless and until that documentation is disclosed.

Nevertheless, concerns regarding “an unjustified fishing expedition” and “creep” in procurement cases could not be taken too far. Recent cases demonstrated that failures on the part of contracting authorities to ensure equal treatment of tenderers were not uncommon. In view of this, “a claimant in the position of Bombardier is entitled to investigate fully the comparative treatment of the tenders, either to confirm criticisms it has already made, or to found freestanding allegations.” This justified an order allowing all members of the confidentiality ring, not just Bombardier’s legal representatives, to access Stadler’s tender for the purpose of ascertaining whether Merseytravel had treated the tenders submitted by the Claimant and the successful tenderer equally.

This judgment is also interesting for the fact that the Judge concluded that subject to considering Stadler's and Bombardier's submissions on the matter he was minded to hold the successful tenderer, rather than the defendant, responsible for the claimant's application costs. This order was made on the basis that the Defendant was neutral as to whether the tender documents were disclosed to Bombardier but, as Stadler objected to the order sought by Bombardier but decided not to attend the hearing, the Defendant was obliged to act to protect Stadler’s position. The Judge held that notwithstanding the fact that Stadler was not a party to the claim and had not participated in the hearing, it had acted unreasonably in objecting to certain elements of the application and should pay Bombardier’s costs.

Comments

This Judgment appears to indicate an increased willingness to allow Claimants access to documents in order to investigate the comparative treatment of tenders, even if allegations of unequal treatment were not included in the original claim. This follows recent high profile cases which demonstrate failures on the part of contracting authorities to ensure equal treatment (see for example Woods Building Services v Milton Keynes Council [2015] EWHC 2011 (TCC) and Energysolutions EU Limited v Nuclear Decommissioning Authority [2016] EWHC 1988 (TCC)).

If this approach is adopted more broadly, it may become significantly easier for disappointed tenderers to obtain access to the documents they need to verify the fairness of procurement processes. Contracting authorities and utilities which comply with procurement law requirements should have nothing to fear, but the decision highlights the importance of ensuring that authorities maintain a clear and accurate audit trail which demonstrates compliance with the published procurement documents and justifies the scores awarded to all tenderers.

The decision also highlights that successful tenderers should be aware of the potential cost implications of refusing to allow contracting authorities to disclose confidential documents in the context of procurement challenges.