Published in July 2017, Appendix H to the Technology and Construction Court (TCC) Guide provides guidance on the management of public procurement claims.
The TCC Guide provides practical guidance on the conduct of litigation in the TCC; it is to be read alongside the Civil Procedural Rules and the relevant practice directions (particularly the direction governing claims in the TCC). The guidance note at Appendix H looks at the unique procedural issues that arise in the context of cases concerning procurement law, and is aimed at managing the steady increase of these claims brought in the TCC and consolidate that division’s case management practices.
Pre-action process and ADR
To the extent that this is practical and does not make it unreasonably difficult to issue and serve proceedings within the short mandatory standstill period of 10 days (even though the limitation period is 30 days), the parties are encouraged to use a pre-action process, the steps of which are described in paragraph 5 of the guidance note. At this stage, information sharing ought to be a priority, and parties should consider using confidentiality rings and undertakings to support early resolution of the dispute. The use of alternative methods for resolving the dispute is encouraged.
Institution of proceedings
The Claim Form must be served 7 days from issue, and the Particulars of Claim 7 days after service of that pleading.
Judicial review
The note sets out the administrative steps to be taken where claimants wish for the same case to be heard in both the TCC (as a procurement claim) and the Administrative Court (as a judicial review). Unless otherwise ordered, such cases would be heard and managed together in the TCC.
CMC, Cost Budgeting and Specific and Early Disclosure
The note briefly describes these three stages, pointing out the usefulness of fixing an early case management conference.
Confidentiality, Redactions, Confidentiality Rings and Undertakings
Public procurement claims frequently involve the early disclosure of confidential information, but confidentiality is not a bar to disclosure. The note sets out practical protocol for dealing with confidential information, including the use of different coloured paper when filing at court, and the format for providing redacted materials. There is substantial detail on how to set up confidentiality rings, namely identified persons to whom documents containing confidential information may be disclosed, including examples of undertakings that may be required from such persons.
Suspension lifting applications
The court can lift the automatic suspension that is in force on commencement of an action and which prevents the contracting authority from entering into the contract in question, and it is important to apply expediently if it is desired that the suspension be lifted.
Interested Parties
There are likely to be various interested third parties in a procurement claim, such as the successful and other unsuccessful bidders. It is sometimes (but not usually) appropriate for interested parties to become full parties to the proceedings, but in any case they must be informed of matters which affect them (note the Public Contracts Regulations 2015 requirement to notify the successful contractor in an event of an ineffectiveness claim), and they may be asked to provide information.
Expedition
In line with public procurement principles, expedited trials will in some cases be appropriate. The relevant procedures would need to be followed, albeit in abbreviated timescales.
Trial and Judgment
In the reporting of trials and publication of judgments, the court will consider the parties’ needs for confidentiality against the interests of openness.
For an example of the guidance note being applied in practice, see Cemex UK Operations Ltd v Network Rail Infrastructure Ltd and another [2017] EWHC 2392 (TCC) (8 September 2017).