The Technology and Construction Court, one of the Senior Courts of England and Wales that regularly hears complex public procurement cases, has issued new guidance (“the Guidance Note”) on how public procurement claims should be managed both prior to the commencement of litigation and after the commencement of litigation. The Guidance Note is available for download here.
Why is it relevant?
Whilst the Guidance Note has no direct applicability to Irish courts (and many of its provisions relate to UK-specific procedural matters, such as pre-action protocols and case management), the Guidance Note is relevant for three main reasons:
- It has received input from the Procurement Lawyers’ Association and provides an insight into best practice for managing confidentiality in public procurement litigation;
- A draft of the Guidance Note was quoted heavily in the recent Merseytravel (Bombardier Transportation Limited and Merseytravel  EWHC 575 (TCC)) case that reversed the presumption that public procurement cases will be marked as private and therefore not open to the public (or potential interested parties in the litigation); and
- The courts regularly wrestle with the management of the competing principles of open justice and commercial confidentiality, raising issues of uncertainty for both the public and private sector alike.
As a consequence, we have provided a summary below on the guidance provided on confidentiality prior to the issuing of proceedings and confidentiality once proceedings have commenced as the principles could be very helpful in an Irish context.
Confidentiality prior to commencement of proceedings
Public bodies are strongly encouraged by the Guidance Note to provide early specific disclosure of key decision making materials that are relevant to the complaint made. English case law (Roche Diagnostics Limited v Mid Yorkshire NHS Trust  EWHC 933) suggests that debriefing unsuccessful tenderers is not only intended to help organisations prepare higher quality tenders for future competitions but also to give tender participants clarity as to whether the evaluation process carried out was fair and legal. However, it is long recognised that this duty does not provide unsuccessful tenderers with the ability to conduct “fishing expeditions” in respect of tender procedures.
Meanwhile in Ireland, the widely reported RPS Consulting Engineers Limited v Kildare County Council High Court case (case note here) heavily criticised Kildare County Council for failing to provide meaningful reasons at an early stage to unsuccessful tenderer RPS.
Contracting authorities should therefore consider the information that they should disclose prior to proceedings. For example, the Guidance Note suggests that contracting authorities may consider disclosing their “Regulation 84 report” setting out the key details of the procurement procedure that they are required to produce by the EU Directive (EU Directive 2014/24/EU) and the 2016 Regulations (European Union (Award of Public Authority Contracts) Regulations 2016) at an early stage. However, the Guidance Note makes a broad reference to documentation referred to in Regulation 84 (which includes documents that “justify decisions taken at all stages of the procurement procedure”), suggesting that contracting authorities may be encouraged at an early stage to disclose evaluation notes and internal deliberations.
Whilst contracting authorities may be eager to disclose information in order to begin the thirty day period to bring a challenge to a tender process, they should at all times bear in mind their obligations under Regulation 21 of the 2016 Regulations in regards to confidentiality owed to tenderers. Contracting authorities may consider providing unsuccessful tenderers with the evaluation notes relating to their bid but redacting any information relating to the business models of other tenderers. This would provide tender participants with greater clarity as to whether the evaluation process was fair and legal.
Confidentiality following commencement of proceedings
The Guidance Note confirms that confidentiality is not an absolute – it is subject to the principles of open justice and proportionality, especially where confidentiality measures would provide “unnecessary costs or complexity” to proceedings: “assertions of confidentiality should only be made where properly warranted”. Some practical steps are suggested – such as marking confidential information clearly on court documents or printing confidential documentation on coloured paper. The Guidance Note also suggests that parties should provide an unredacted set of proceedings (not accessible to the public) and a redacted set of proceedings with a schedule explaining the reasons for the redactions.
The Guidance Note places a particular emphasis on the use of confidentiality rings (where individuals give undertakings in exchange for access to confidential documents, similar to a data room in a corporate transaction), suggesting that parties should consider preparing a confidentiality rings as soon as litigation is contemplated. Establishing the criteria that individuals must meet prior to admission to a confidentiality ring is particularly important, in addition to the undertakings that they will be required to make to the court.
External legal advisers such as solicitors and barristers will be included as a matter of course within a confidentiality ring, but the inclusion of a party’s employee representatives (such as in-house lawyers or technical advisors) raises issues of commercial confidentiality. The court will consider the following factors prior to admitting an individual to a confidentiality ring:
- that individual’s role in the organisation (e.g. if they hold a senior position in bid management);
- the possibility of the market being distorted or an unfair advantage arising due to the confidential information (e.g. a party obtaining an advantage in future tenders);
- how the risk can be controlled (e.g. creating an internal “Chinese wall” within the organisation or preventing the individual from working on a related tender); and
- the impact the controls may have on that individual (e.g. if an individual is barred from involvement in tenders for a fixed period of time).
The Guidance Note also raises the concept of a two tier confidentiality ring where employee representatives have limited access to confidential documentation – either by only releasing technical documentation to a party’s employee representative (rather than pricing information) or creating a notification system where a party’s lawyers apply for employee representatives to gain access to confidential information (subject to objections from interested parties).
The courts of England and Wales have firmly encouraged a “cards on the table” approach to proceedings in recent times in order to comply with the overriding objective of dealing with cases “justly and at proportionate cost” (Civil Procedure Rules, Part 1), and this Guidance Note firmly reflects this. The Guidance Note provides some practical steps for Irish practitioners as to how to manage disclosure of documentation before and after proceedings have been lodged, and in light of RPS, contracting authorities may feel early disclosure when specific concerns have been raised by unhappy tenderers is the most pragmatic way forward.