Disclosure in Public Procurement Challenges

For most procurements (other than those either under threshold or for Part B services), the Public Contracts Regulations contain their own mechanism (under Regulation 32) for the communication of relevant comparative information to the tenderer about his bid and that of the winner, to enable him to gain that understanding.

However, it is also the case that the level of information that the contracting authority is willing to provide at that stage (if any) can be extremely varied.

Sometimes it will provide the barest possible minimum of information, leading to the inevitable challenge on the basis that Regulation 32 has not been complied with, and the standstill period has therefore not been engaged. On other occasions, significant information will be supplied, which may in turn open up avenues of enquiry for the losing bidder to ask extra questions, or to request further information or documents.

In view of the strict timescales within which a challenge can be brought (30 days following the 2011 legislation), tenderers will often issue proceedings with little knowledge of how to articulate properly an alleged breach of the Regulations. It is not uncommon for statements of case to be prepared on the basis of a mere suspicion of irregularity, or on the basis of information supplied by a third party (and sometimes even a 'mole' from within the contracting authority itself). In those circumstances, that contractor may face applications for strike out or summary judgment, which, in turn, are defended on the grounds that the authority has not made documents or information available so as to enable the claimant's case to be properly investigated or pleaded.

The net result (and possibly the inevitable result) of the above is applications for disclosure of documents, which since Alstom v Eurostar [2010] EWHC B32 (Ch) have been essentially approached by the Courts in procurement cases as a 'blended' application taking into account principles from the rules in relation to (i) pre-action disclosure and (ii) specific disclosure.

Since Alstom there have been several helpful judgments in the TCC, including Roche Diagnostics Limited v Mid Yorkshire Hospitals NHS Trust [2013] EWHC 933 (TCC) (Coulson J) and Pearson v Minister for the Cabinet [2013] ERWHC 2082 (TCC) (Akenhead J), in which the Court has grappled with both categories of documents that ought to be disclosed by contracting authorities, and the timing of such disclosure. The appropriate principles, which appear now to be generally settled, are summarised by Coulson J in Roche at paragraph 20:

An unsuccessful tenderer who wishes to challenge the evaluation process is in a uniquely difficult position. He knows that he has lost, but the reasons for his failure are within the peculiar knowledge of the public authority. In general terms, therefore, and...