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Managing public procurement claims in the TCC

Procurement iStock 000002542569XSmall 146x219LexisPSL Public Law analysis: HM Courts & Tribunals Service is due to issue guidance for lawyers bringing complex public procurement claims to the Technology and Construction Court (TCC). As we await publication of the updated TCC Guide, Will Thomas, procurement litigator and Peter Ware, partner, at Browne Jacobson, look at what the new protocol on public procurement cases will mean in practice.

What is the purpose of the guidance?

The guidance forms part of the TCC guide. Its purpose is to provide practical advice on how public procurement claims should be managed, both at pre-action stage and following issue in the High Court.

PSL practical point: We understand that the draft guidance has been approved by the Master of the Rolls and will be published as a new Appendix H to the TCC Guide shortly. See: Construction future developments tracker — Dispute resolution.

What is the scope of the guidance?

The guidance covers matters of procedure and best practice. It largely mirrors the draft guidance released earlier this year which was considered in the case of Bombardier Transportation Limited v Merseytravel [2017] EWHC 575 (TCC), [2017] All ER (D) 181 (Mar) (see News Analysis: Court relies on new procurement Guidance Note in dealing with confidentiality issues (Bombardier v Merseytravel)).

What are the key practice points addressed?

The key practice areas which are addressed are:

  • pre-action process and alternative dispute resolution (ADR)
  • issuing and service of claim
  • issuing of a related claim for judicial review
  • post-issue procedural matters (in particular, claims management companies, cost budgeting and specific disclosure)
  • confidentiality and general disclosure
  • suspension listing applications
  • interested parties, and
  • expedition

Are there any particular guidance points which are singled out?

The guidance provides particular focus on the issue of confidentiality and disclosure. It notes that confidentiality is not a bar to disclosure. However, the court will seek to manage proceedings so that confidentiality is protected where genuinely necessary, but ensuring that the issue does not give rise to unnecessary cost or complexity.

Early disclosure of information is recommended so as to allow parties to resolve cases before proceedings. Confidentiality rings should be set up where necessary to facilitate such early disclosure. These should be established as soon as possible and will typically require disclosure to a limited number of individuals (such as a claimant’s external legal advisers) on the basis of their undertaking to preserve confidentiality. Guidance is provided on the basis on which employee representatives may be admitted to a confidentiality ring.

The guidance includes several practical steps which can be taken to ensure the proper protection of confidential information once formal proceedings have begun, such as:

  • providing confidential papers directly to the allocated judge's clerk, rather than to the court’s general address, and clearly marking papers and communications as ‘Confidential’ if they are confidential
  • the use of coloured paper to identify confidential documents and the level of their confidentiality (ie Tier 1), and
  • providing appropriately redacted copies of pleadings so as to permit public access to them in redacted form—such redacted documents should be accompanied by a schedule listing the confidential information and the reasons for the claim for confidentiality

The guidance also focuses on how parallel proceedings for judicial review will be dealt with. These proceedings should, unless otherwise ordered by a judge in charge of the TCC or the Administrative Court, be heard and case managed together with the related claim in the TCC.

To facilitate this, claimants are required to copy applications for judicial review to judges in charge of both courts and request that the claim be heard alongside the related claim in the TCC. The judge in charge of the TCC will then notify the parties whether the case should be heard alongside the claim in the TCC or be heard separately in the Administrative Court.

What best practice is provided for claimants, defendants and interested parties in public procurement challenges?

In addition to the points highlighted above in respect of confidential information, claimants and defendants are encouraged to follow the pre-action process set out in the guidance. This involves the following steps:

  • the potential claimant sending a letter before claim identifying:

- the grounds of challenge

- any information sought

- the remedy sought, and

- a 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 potential claimant

  • the contracting authority should:

- acknowledge receipt

- notify the potential claimant of their solicitors’ details, and

- indicate whether the standstill period will be extended—the authority should also provide any information which specifically relates to the grounds of challenge raised by the claimant (in doing so, the parties should consider entering into a confidentiality ring to facilitate the disclosure of confidential information)

- provide a substantive response within any timescale requested by the claimant, or as soon as practical thereafter

The parties should then continue to make appropriate and proportionate efforts to resolve the dispute without the need to commence proceedings—ADR processes are encouraged, both before and during proceedings.

Claimants and defendants should also take steps to ensure that any interested party (such as a successful bidder affected by the disclosure of confidential information contained in a bid) is put on notice of matters affecting its interest. Interested parties may then apply to the court to be represented.

What does the guidance provide in relation to the roles of the various parties?

The guidance acknowledges that claimants commonly feel that they have insufficient evidence or documentation to fully particularise their case, while short limitation and standstill periods often mean that proceedings are issued hastily. Conversely, it acknowledges the difficulties contracting authorities may face with regard to confidential information. The guidance therefore seeks to strike a balance to protecting confidential information and adhering to the principle of open justice.

Are there any particular items that contracting authorities/contractors should take note of?

Contracting authorities should take particular note of the provisions regarding pre-action conduct, confidentiality and disclosure (as summarised above). They should also consider the section on suspension lifting applications. This provides that the timing of such an application is a matter for the applicant but, if urgency in placing the contract is to form part of the balance of convenience, the application needs to be brought expeditiously. However, enough time needs to be provided for the respondent to submit evidence and there to be evidence in reply before any hearing.

Are there any particular items that procurement/construction lawyers should take note of?

Lawyers acting for potential claimants should also take note of the provisions regarding the issuing and service of claim. This clarifies when the claim form must be served and how to deal with confidential information in any particulars of claim. In addition, the sections of the guidance concerning case management conferences, cost budgeting and specific disclosure may be of particular assistance.

Are there any grey areas?

The guidance appears to provide a comprehensive and helpful note for practitioners. However, it is noted that this is a rapidly developing area of law and practitioners must ensure that they are aware of the most recent case law at all times.

Is further guidance anticipated?

No further guidance is anticipated at the moment.

The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor. This article was originally published in LexisPSL Public Law. If you would like to read more quality content like this, then register for a free 1 week trial of LexisPSL.