Procurement in a nutshell – TCC Guidance Note on procurement cases

The Guidance Note, which forms Appendix H to the TCC Guide, will be published in the next supplement of the White Book.

Drafted last year by a working group of TCC judges and practitioners, the guidance has only recently received approval from the Master of the Rolls.

We have provided an overview of the guidance, which will be of interest to Contracting Authorities (CAs) which face the risk of procurement challenges.

What’s in the guidance?

The Guidance Note deals with the following:

Pre-action Process and ADR

The Guidance Note considers practicalities of using the pre-action process and acknowledges the difficulty created by the short limitation period.

Commencement of Proceedings

The short timescales for service of the Claim Form and the Particulars of Claim are covered, as well as what to do if the Particulars of Claim or other pleadings contain confidential information.

Judicial Review

An explanation of the process where Judicial Review proceedings are brought alongside claims under the Public Contracts Regulations (PCR) 2015 is provided. The interaction between and the management of the two types of claim are set out.

Case Management Conference (CMC)

The possibility of an early CMC is highlighted in the guidance, as well as the need for parties to be aware of the pilot scheme for Shorter and Flexible Trial Procedures.

Costs budgets

The Guidance Note outlines the steps required for application to the Court in the event of uncertainty regarding costs budgets or prevention of the preparation of realistic budgets due to the pace of proceedings.

Specific and early disclosure

Early disclosure on the part of CAs is encouraged in the guidance. This recognises the entitlement of aggrieved bidders to make requests for documentation under the PCR 2015, the Civil Procedure Rules and the Freedom of Information Act 2000.

Confidentiality

This part of the guidance has already received judicial approval. In Bombardier Transportation Ltd v Merseytravel [2017] EWHC 575, Justice Coulson relied on the Guidance Note (in its draft form) for its content on confidential information, as we noted in a previous update. The guidance outlines:

• procedural options for dealing with confidential information without incurring undue costs or complexity; and
• practical steps to assist the Court in dealing with confidential information.

Redactions

To ensure that assertions of confidentiality are only made where properly warranted, the Guidance Note requires the creation of a “redaction schedule”. The schedule should list the redactions in documents, detailing their location within the document and providing justification for the claim of confidentiality.

Confidentiality rings and undertakings

Different kinds of confidentiality rings are explained in the guidance. The use of undertakings is also addressed – placing restrictions on certain individuals in order to limit disclosure of information which could impact on future competition and/or successful procurement.

Suspension lifting applications

The guidance notes some of the considerations for both the CA and the Court regarding applications for the lifting of automatic suspension.

Interested parties

The approach taken by the Court to “interested parties” is outlined including, for example, the recommendation that the claimant and defendant take steps to ensure that an interested party is on notice of matters which affect its interests.

Expedition

The considerations which should be made by both parties and the Court regarding an application for an expedited procedure are highlighted in the Guidance Note.

Trial reporting and Judgments

In noting the approach taken by the Court to trial reporting and judgments, the need for open access to court proceedings and judgements to be balanced with confidentiality interests is highlighted.

Why is this important?

The new Guidance Note is an important recognition of the unique challenges which parties face in procurement challenges, namely the short time limits, risk of automatic suspension and the threat of a declaration of ineffectiveness.

The guidance is an important tool to help CAs meet the pressure of dealing with procurement cases quickly and effectively, given the large sums of public money involved.

How can I find out more?

If you have any queries on the issues raised or on any aspect of procurement, please contact us via our procurement hotline on 0191 204 4464.