The Technology and Construction Court (TCC) has produced a new Guidance note on public procurement cases. The Guidance was produced in collaboration with the Procurement Lawyers’ Association (which includes Osborne Clarke’s procurement experts). It aims to:

  • encourage parties to settle disputes without having to issue proceedings, by recommending that authorities engage openly with providers and disclose key documents at a very early stage;
  • avoid parties having to reinvent the wheel when it comes to common procedural issues for public procurement cases; and
  • reduce legal costs incurred by all parties, by allocating knowledgeable court staff and expert judges to deal with cases.

Encouraging early settlement

In commercial litigation, disputes are often settled at the pre-action stage, before a claim is even issued. Public procurement challenges, however, are subject to very short limitation periods, during which there is likely to be a major imbalance in the information that the two parties hold. It can often be difficult to engage contracting authorities in meaningful settlement discussions before a claim is issued.

The Guidance aims to encourage more disputes to be settled at the pre-action stage, by setting out a pre-action regime designed specifically for procurement disputes, which includes the early sharing of information and encouragement to use ADR processes before a claim is issued.

Common procedural issues

Procurement challenges can involve particularly complex procedural issues which can result in parties wasting a lot of time and effort re-inventing the wheel. Some of the most common issues are:

  • the very short limitation period (and the limited scope for engaging in pre-action correspondence and disclosure of key documents as a result of the short timeframe);
  • the need to protect commercially sensitive information belonging to winning bidders; and
  • the difficulty in issuing a private action in the TCC alongside a separate judicial review in the Administrative Court.

The Guidance makes the following recommendations for tackling common issues:

  • Pre-action communication: the Guidance encourages authorities to respond promptly and openly to correspondence. This should reduce the instances of claimants having to commence proceedings simply to open a communication channel with authorities.
  • Confidentiality: the Guidance strongly encourages authorities to disclose key materials to claimants at a very early stage (such as during pre-action correspondence) when relevant to the complaint. This should reduce the need for claimants to incur the cost of making a court application to obtain this information.
  • Public and private actions: issuing claims in both the TCC and the Administrative Court (as a judicial review) can be costly and procedurally complex. The Guidance recommends that where this happens, both cases should be heard together in the TCC by a judge with an understanding of both processes, which should significantly reduce the legal costs incurred by managing both claims.
  • Other interested parties: public procurement disputes often engage the interests of others, such as winning bidders where a challenge is being raised by one of the unsuccessful bidders. The Guidance recommends that winning bidders should be put on notice and should apply to the court if they wish to be represented as interested parties. The Guidance makes it clear that interested parties may be entitled to recover their costs, or even in some circumstances may be ordered to pay the costs of others.

Using the Guidance

The Guidance aims to drive best practice in procurement cases and encourages pragmatic and cost-efficient ways of dealing with common issues. The Guidance advocates for the TCC being the venue of choice for public procurement cases, with its staff and judges having the best knowledge and expertise to deal with them (noting that cases can still be brought in other courts).

The Guidance will be published by the TCC on 17 July 2017, and will be incorporated as an annex to the TCC Guide. As such, it will not have the status of binding procedural rules. However, judges will take the Guidance into account, both in terms of case management (when it comes to arrangements for confidentiality, for example) and when it comes to considering parties’ costs.

It is important to note that any published Guidance has a tendency to go out of date once printed, especially in such a rapidly developing area of law. Indeed, case law just since the guidance was finalised has dealt with confidential information (Bombardier Transportation v Merseytravel [2017] EWHC 575) and early disclosure (Alstom Transport UK v London Underground and another [2017] EWHC 1406 and 1584). We suggest parties seek expert legal advice before relying on the Guidance.