The Technology and Construction Court has issued guidance on dealing with public procurement challenges. The “Guidance Note on Procedures for Public Procurement Cases” acts as a form of pre-action protocol and applies from 17 July 2017. 

Public procurement cases raise singular procedural issues and difficulties. Claimants often feel that they have insufficient evidence or documentation to prepare their claim and the short limitation and mandatory standstill periods result in proceedings being issued at an early stage. For successful bidders, the issue of proceedings before a contract has been entered into, results in automatic suspension of a potentially lucrative contract. It is in the interests of all bidders, whether successful or otherwise, to resolve challenges quickly. 

The Guidance covers: 

  •  Pre-action process and alternative dispute resolution – recognising that due to the short limitation period (the shortest known to English law), the time for any pre-action process is limited.
  • Commencing proceedings – how to serve the claim form and particulars of claim.
  • Judicial review – how judicial review proceedings interact with parallel proceedings under the Public Contracts Regulations 2015. 
  •  Case Management Conferences – the benefit of arranging an early CMC so the Court may consider the urgency and fix appropriate dates for trial, anticipated applications, confidentiality, cost budgeting and specific and early disclosure. 
  •  Confidentiality generally – balancing the need to protect confidential information with the basic principle of open justice.  
  • Suspension lifting applications – how the Court can lift the statutory suspension preventing the contracting authority from entering into a contract and the timing of such an application. 
  •  Interested parties – how successful bidders may be affected by relief sought or the disclosure of confidential information contained in its winning bid.  
  • Expedition – the right for the Court to support (and in appropriate cases impose) rapid progress to trial as early as is practicable. 

Bidders will be particularly interested in how the Guidance deals with the preaction process and ADR. The mandatory standstill period is only ten days, so an aggrieved bidder may need to commence proceedings without delay to obtain an automatic suspension of the award of the contract. The Guidance seeks to enable the parties to settle the issues between them without the need to start proceedings, by encouraging them to exchange information about the claim and consider ADR.  

The Guidance recommends the following pre-action process:

1. The potential claimant sends a letter before claim to the contracting authority. The letter should set out:  

1.1. The procurement process to which the claim relates;  

1.2. The grounds then known for the claim (both factual and legal); 

1.3. Any information sought from the authority; 

1.4. The remedy required; 

1.5. Any request for an extension of the standstill period and/or a request not to enter into the contract for a specific period of time and/or not to do so without a specified period of notice to the claimant; and 

1.6. An appropriate, short, time limit for a response. 

2. The authority should:

2.1. Promptly acknowledge receipt of the letter before claim; 

2.2. Notify its solicitors’ details; 

2.3. Indicate whether the standstill period will be extended and, if so, by how long; 

2.4. Provide any information to which the claimant may be entitled as soon as possible; and 

2.5. Send a substantive response within the timescale proposed by the claimant, or as soon as practical thereafter. 

3. Having exchanged correspondence and information, the parties should continue to make appropriate and proportionate efforts to resolve the dispute without the need to commence proceedings.  

4. The parties should act co-operatively and reasonably in dealing with all aspects of the litigation, including requests for extensions of time, taking into account the expiry of the standstill period and/or any limitation periods. 

5. The parties should also act reasonably and proportionality in providing one another with information, taking into account any genuine concerns with regard to confidentiality. The aim being to avoid the need to issue proceedings simply to obtain early specific disclosure. The authority is strongly encouraged to disclose the key decision materials at an early stage where relevant to the complaint made.  

6. ADR processes are encouraged, both before and during proceedings. 

The Guidance is not yet available on the TCC website. We understand it will be included as Appendix H in the next version of the TCC Guide. Please email James Hutchinson if you would like a PDF of the Guidance or if you have any other procurement queries.