Court procurement challenges are complex and often urgent. The Technical and Construction Court (TCC) has published guidance for authorities, bidders and specialist procurement lawyers.
Court guidance on the conduct of public procurement claims has been issued to help codify the steps bidders and authorities are expected to take. We set out below the key points in the guidance as well as the key points for authorities and bidders.
New court guidance on procurement claims
Public procurement claims are highly specialist and often need to be brought to court very quickly, in some cases within 10 days of contract award. Most claims of this type are brought in the Technology and Construction Court (TCC). In order to help authorities and bidders (as well as their advisers) the TCC has issued guidance on how these claims should be brought and managed. The guidance is not strictly binding, however, the judges will expect it to be followed and failure to do so may result in costs penalties. It expressly requires parties to co-operate in bringing the claim before the courts.
Practitioners will need to be aware of the details of the guidance, however, those engaged in procurement at every level will benefit from being aware of certain key clarifications.
Key points in the TCC guidance
The court recognises certain aspects of procurement cases which differ from normal claims and require specific treatment. These include:
Shortened pre-action process and timings for service of claim
Claims must be brought urgently. The guidance recognises the difficulty of a full pre-action process in these circumstances but encourages an exchange of letters including an outline of the issues identified/challenged, requests for documents and discussion of extension of the standstill period.
It also recognises the need to serve a claim within 7 days of issue including particulars of claim (unless agreement can be reached to defer these) and clarifies the timings.
Extent of disclosure from the authority required
Bidders have substantially less information about the scoring than authorities. The guidance consequently confirms the expectation that authorities will provide the "key decision materials at an early stage." This may include the documents which an authority is required to retain under the regulations demonstrating the process undertaken (including relevant evaluation documents).
Where a bidder considers that sufficient documentation has not been provided it is able to bring an application for further documents. The guidance recommends that such an application is determined at a case management conference if one is convened early.
Confidentiality in bid material disclosed
Parties in procurement claims will frequently have confidential material of their own and belonging to other parties (including a winning bidder). The guidance explains the approach which should be taken to preserving confidentiality where appropriate, designing confidentiality rings and making necessary applications.
This can be a particularly technical aspect of procurement claims where the interests of several parties need to be balanced. The guidance should help to streamline discussions on this point.
Role of the winning bidder and other interested parties
The winning bidder's interest in a claim is expressly recognised. The guidance envisages them (and some others who may have an interest in the outcome) participating in proceedings as 'Interested Parties' rather than being formally joined to the proceedings.
The precise role of an Interested Party will depend upon the facts of the claim however the guidance makes clear that they will in some cases be entitled to receive (redacted) claim documents, be represented in certain applications and be able to claim costs or have exposure to pay costs.
Overlap with judicial review
In some cases a parallel claim for judicial review may arise where there is a procurement claim. In such cases the guidance provides details on how that claim should be lodged and joined with the procurement claim before a TCC judge who will also act as a judge of the administrative court.
Timings and arrangements for the stay hearing
Issuing a claim results in an automatic stay preventing the contract being signed. In many cases an authority will apply to court to have the stay withdrawn. The guidance provides details on the timings for such applications including confirming that they should be held on sufficient notice to allow the bidder to file evidence explaining why the stay should be upheld.
This is a helpful development for those participating in public procurement claims in the TCC and administrative court which should be welcomed. If parties comply with it, the often time pressured and complex process associated with bringing such claims should be streamlined.