Public procurement challenges have become more frequent in recent years, as winning large public sector contracts becomes the subject of increasing focus. As a result, the Courts have been dealing with growing numbers of these specialist claims.
Public procurement claims raise singular procedural issues, which have to be managed by the parties and by the Court within a very short timescale. In most cases, claims must be brought by a losing bidder against the public authority awarding the contract within 30 days of when the bidder knew or ought to have known of grounds for a challenge. Once proceedings are issued, if the contract has not yet been awarded, there is a statutory "automatic suspension" of that award, leaving the winning bidder deprived in the meantime of the contract award. The authority must apply to the Court to have this suspension set aside, if it wishes to award the contract before a full trial of the claim takes place. All of this gives very limited time for pre-action correspondence, which is further complicated by the fact that the parties frequently want their documentation to be dealt with confidentially, given the commercial sensitivity of bid information.
With large sums of public money at stake, there is pressure to deal with these claims quickly but effectively. The Courts have to balance the public interest in the prompt award of contracts and continuity of provision of public services, against ensuring that contracts are awarded lawfully, so that losing bidders are not deprived of the opportunity to win contracts that may otherwise be awarded in breach of public procurement legislation.
There has to date been no special rule of procedure or practice direction for dealing with public procurement claims, which have often been heard in the Technology and Construction Court (TCC).
Those advising on, and with an interest in, public procurement claims will in future be able to turn to Guidance that was issued on 5 August 2016 by the TCC as a new Appendix H to the TCC Guide. This deals with:
- Pre - Action process and ADR, looking at what may be practical, and acknowledging the difficulty of the short limitation period
- Starting Proceedings: the short timescales for pleadings and what to do about confidential information in pleadings
- Judicial Review proceedings brought alongside Public Procurement Challenges: how they interact and streamlining the procedure by managing the claims together
- Case Management Conferences: considering the Shorter and Flexible Trials Schemes; dealing with costs budgeting; recognising the importance of early disclosure as the losing bidder may need information regarding the evaluation of bids to which only the public authority has access
- Confidentiality, looking at the procedural options for dealing with commercially confidential information without increasing costs unnecessarily; practical steps to assist the Court in dealing with confidential documents; redactions; different kinds of confidentiality rings and undertakings; whether to restrict access to the trial of the matter; whether to apply to restrict dissemination of the judgment
- Applying to lift the automatic suspension that prevents the contracting public authority from entering into the contract in question
- Interested parties: these are often not complete "outsiders" but may include a winning bidder who is affected by the relief sought by a losing bidder
- Expedited hearings - the need for a quick trial, whilst also managing an abbreviated timetable for preparing the case
This new TCC Protocol on Procedures for Public Procurement Cases will therefore provide an invaluable resource for those dealing with Public Procurement Challenges.
The Protocol was prepared in consultation with a working group from the Procurement Lawyers' Association (PLA), and draws on the expertise of practitioners with many years' experience of dealing with Public Procurement claims.
For further information, please contact Bill Gilliam and Clare Dwyer, who were both involved in the working group who prepared the Protocol.