One of the most common queries we receive from disappointed bidders is "how can I get hold of the documents? I need to know whether it is worth bringing a claim". This is a perennial problem for those wishing to challenge an award particularly if they are to meet the time limits for challenges set out in The Public Contracts Regulations 2006 (the "Regulations"). While a request under the Freedom of Information Act 2000 (FOIA) can unlock some information the statutory scheme gives contracting authorities enough time to legitimately drag their feet until the time limits for issuing proceedings under the Regulations has passed.
In a recent case before the High Court, Roche Diagnostics Ltd v The Mid Yorkshire Hospitals NHS Trust (2013), the judge ruled that an aggrieved bidder could obtain early disclosure of specific documents which might enable it to take an informed view of the evaluation process and for pre action disclosure of documents relating to the letting of an interim contract.
An application for specific disclosure identifies particular documents or categories of documents which are regarded as critical to the case and asks for those to be made available as soon as possible. As a matter of principle the court recognised that a claimant in a procurement case is in a uniquely difficult position compared to the defendant because it simply does not know what happened in the evaluation of its tender. The court found that in general terms the claimant ought to be provided promptly with the essential information and documentation relating to the evaluation process. However the court was also keen to ensure that a balance was struck between those cases where the claimant has a prima facie case and those where it does not. The request for disclosure should be focused rather than a "fishing exercise".
In an application for pre-action disclosure a party may ask for disclosure of documents to enable it to consider if it has a case or not. A court may order pre action disclosure if it is fair to do so and it may assist the parties to avoid litigation or save cost. Where there are concerns about confidentiality (for example, because the documents requested include information relating to the successful bidder’s bid or which might otherwise prejudice commercial interests or fair competition) it is common to establish a "confidentiality ring" into which the documents are disclosed and to which only specified individuals have access usually lawyers, counsel and other key advisors).
The court allowed both applications, at least in part, and ordered the defendant to disclose documents. Indeed, in relation to the request for pre action disclosure the court commented that it had been surprising that access to basic information had not been given voluntarily. There were no confidentiality difficulties presented by disclosure as the parties had already agreed that a confidentiality ring should be established.
The important lesson here for contracting authorities is that it is rarely sensible to sit on relevant information and force the claimant to incur legal costs to pursue it. Firstly, the more open you are the better chance you have of persuading a claimant not to make a challenge and avoiding the costs of litigation. Secondly, public authorities have a duty of candour so should generally be more open in their dealings than a private party might be. Thirdly, the information requested will almost certainly come out anyway either by way of a request under FOIA or in the course of litigation. Refusing disclosure really serves no purpose if you wish to avoid scrutiny of your decisions. Finally, going to court and arguing about disclosure is expensive and if a court takes the view that disclosure should have been given voluntarily a party could be heavily penalised in costs.
Finally, this case is illustrative of the increasing willingness of bidders to challenge procurement decisions and the increasing difficulties for contracting authorities in concluding a procurement without challenge. Unluckily for the contracting authority (an NHS Trust) the claim here, by Roche Diagnostics, related to the fifth attempt to conclude the procurement and award the contract. No less than four previous procurements had been abandoned as a result of challenges. Roche Diagnostics had been the winning bidder in one of the abortive exercises but not this one, demonstrating the risk of challenge from disappointed former "winning" bidders if the procurement has to be re-run.