Disputes about public procurement contract awards can pose evidentiary problems for both tenderers and contracting authorities. Does the tenderer challenging an award have enough evidence to support its concern that something has gone wrong? If it does not, will its request for more information be rejected as a ‘fishing expedition’? Does the contracting authority, in turn, stick to the minimum information that it has to give, or, subject to protecting its confidentiality, does it, despite the time and costs involved, try to be helpful and provide more information, at the risk of opening the door to additional requests?
Bristol City Council’s award of a new contract was challenged by the unsuccessful incumbent contractor and the new contract award was automatically suspended. The council asked the court to lift the automatic stay. In deciding that there was a serious issue to be tried and rejecting the council’s interlocutory application, the court recognised the council’s dilemma but said that it should not try to follow both courses. It should not refuse requests for documents relating, say, to the evaluation of the successful tenderer’s bid, or the bid itself, but then, on the application to lift the suspension, provide, for the first time, evidence about the process or the successful bid in support of its case. Controversial material, and/or material which, because of the absence of prior disclosure, the claimant simply cannot address satisfactorily if produced for an interlocutory hearing, should not ordinarily be deployed on an application under Regulation 47(H), because of the risk of unfairness.
The court also considered that damages would not be an adequate remedy for a non-profit making organisation, whose bid allowed nothing for profit and a minimal amount for overheads.
Bristol Missing Link Ltd v Bristol City Council EWHC 876