The Technology and Construction Court has published a guidance note on procedures for and the management of public procurement cases.
The introduction to the guide, published as appendix H to the TCC Guide, says: “This is a rapidly developing area of law; while this guide should assist, practitioners must ensure that they are aware of the most recent relevant case law.”
It adds: “Public procurement cases, particularly those involving claims which seek to set aside the decision to award the contract in question, raise singular procedural issues and difficulties. The claimant commonly feels that it has insufficient evidence or documentation fully to particularise its case or otherwise prepare for trial, while the short limitation and mandatory standstill periods mean that proceedings are necessarily issued hastily.”
The guidance adds that the provision of pleadings and documentation on disclosure often gave rise to serious difficulties in connection with confidentiality, particularly where there was a real risk that there would have to be a re-tendering process. Confidentiality rings will often need to be set up by agreement or order.
The introduction continues: “The issue and notice of proceedings challenging a contract award decision before the contract has been entered into, results in automatic suspension of the conclusion of the contract with the successful tenderer. The latter has a particular interest in the protection of the confidential information in its documents, many of which will be in the possession of the contracting authority, and may wish to make representations in relation to confidentiality and other matters. It is therefore not unusual for the successful tenderer to make an application to be joined in the proceedings or to have its interests protected by some other means.”
The guidance, which has been approved by the Master of the Rolls, covers:
- Pre-action process and ADR
- Institution of proceedings: service of the Claim Form; service of the Particulars of Claim;
- Judicial review
- CMC (case management conferences)
- Cost budgeting
- Specific and early disclosure
- Confidentiality generally
- Confidentiality rings and undertakings
- Suspension lifting applications
- Interested parties
A copy of the guidance can be viewed here.