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A B C D E F G H I J K L M N O P R S T V W Y

“Early” is the word for public procurement cases

“Early” is the word for public procurement cases

Thursday 24th August 2017

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The Technology and Construction Court (TCC) has produced a guidance note on procedures for public procurement cases. The note aims to streamline management of such cases, acknowledging that short limitation and mandatory standstill periods can lead to legal proceedings being “issued hastily”.                                                                                                                                               
Key points from the note include:

Pre-Action and Alternative Dispute Resolution (ADR)

  • With the mandatory standstill period being only 10 days long, potential claimants must act quickly to obtain automatic suspension of the contract award. A pre-action process is recommended to the extent that it is practical and does not take up too much time. This aims to enable parties to settle issues without the need to start proceedings, as well as exchange information and consider ADR.
  • The recommended pre-action process is as follows:
  • The potential claimant should send a letter before claim to the contracting authority. This should identify the procurement process being challenged; the grounds for the claim (both factual and legal); any information sought from the authority; the remedy required; any request for an extended standstill period; and an appropriate time limit for a response.
  • The authority should respond with an acknowledgement of receipt of the letter before claim, give its solicitors’ details, and indicate whether the standstill has been extended.
  • The parties should continue to resolve the dispute without the need to commence proceedings. Communication should be co-operative and reasonable, and ADR processes are encouraged throughout proceedings.

Institution of Proceedings

  • The Claim Form must be served on the defendant within 7 days after the date of issue, and the Particulars of Claim must be served no later than this.
  • If the Particulars of Claim contain confidential information, both a confidential and non-confidential (i.e. redacted) version of the pleading should be lodged with the Court. The former should be clearly marked as confidential on paper and envelope. An order should be sought by letter (and copied to any relevant parties) that access to the Court file be restricted.

Specific and Early Disclosure

  • Early disclosure may be justified to enable the claimant to plead its case properly, and “contracting authorities are encouraged to provide their key decision making materials at a very early stage of proceedings or during any pre-action correspondence”, in order to avoid additional early proceedings to secure disclosure.
  • In practice, this means authorities will have to provide relevant information fairly soon after the pre-action letter. The question of disclosure will be considered at the first Case Management Conference (CMC), which itself may be early if appropriate.

Confidentiality

  • The note stresses the importance of general confidentiality, while seeking to avoid “unnecessary cost or complexity”. It advises confidential papers to be clearly marked or stamped as such, suggesting coloured paper to be used for immediate identification.
  • Confidentiality rings are becoming increasingly common. However, due to increased cost and complexity, a two-tier ring must be justified early on. A “two-tier” ring may be considered, with employee representatives having access to some but not all of the material disclosed in the ring – only what they need to know.

Interested Parties

  • The successful bidder may be affected by the relief sought in a procurement claim, which typically involves setting aside the award decision in their favour. The Court can consider an interested party, besides the claimant and authority, to become a full party to the proceedings. This may involve providing relevant documentation – once again, the note stresses this must happen “as soon as practicable”.

This guidance note can assist claimants, authorities, and other interested parties by laying out a procedure. The note is, however, incredibly ambitious – asking a lot from these parties, and as soon as possible. The fast-paced nature of procurement proceedings requires this, but it presents a mammoth task to all parties. Getting in touch with external legal advisors early on is therefore necessary for a successful procurement claim or defence.  

For any queries regarding preparation of your tender documents, the evaluation process, or public procurement law in general, please visit our procurement page or contact Richard Hough.