A practical guide to public procurement challenges under the Procurement Act 2023 - Flipbook - Page 7
A guide to public procurement challenges in England and Wales
The interests of suppliers, including whether
damages are an adequate remedy for
the claimant.
Any other matters that the court considers
appropriate.
The tests are newly stipulated in the PA23 and on
the face of it reflect a departure from the previous
public procurement legislation, which required the
court to apply the same principles as apply upon the
application of an injunction. However, the factors
identified in the PA23 to be taken into account by
the court are factors which the court has taken
into account in applications under the previous
legislation. Therefore, it may be that in practice there
will be little difference in the application of the new
regulations.
The contracting authority must issue an application
notice together with witness statements in support
of the application, setting out the facts upon which
the contracting authority relies in support of its case
addressing the factors to which the court must have
regard. The challenger will have an opportunity
to file witness statements in response and the
contracting authority may have an opportunity to
file a further round of statements. There will then
be a hearing typically lasting one day, consisting of
oral argument in front of a Judge. Witnesses are not
required to give evidence orally.
The court is likely to impose two requirements if
minded to order the continuation of the automatic
suspension:
The trial will be expedited so that the substantive
hearing takes place as soon as possible, keeping
the duration of the automatic suspension to a
minimum.
The challenger will probably be required to
provide a “cross-undertaking in damages” in
favour of both the contracting authority and the
winning bidder. The cross-undertaking applies
if the case proceeds all the way to trial, the
challenger is unsuccessful, and the contracting
authority or winning bidder are able to
demonstrate they have suffered losses due to the
suspension remaining in place.
Interested parties
It is accepted by the courts that the winning
bidder has a legitimate interest in protecting its
confidential information in documents disclosed or
to be disclosed to the challenger by the contracting
authority and in a cross-undertaking in damages if
the automatic suspension is continued. Often the
winning bidder is admitted to the proceedings as an
interested party by consent, for limited purposes.
These purposes may go beyond confidentiality.
However, if the interested party seeks to duplicate
arguments made by the contracting authority, that
is likely simply to increase costs and is unlikely to be
sensible (or acceptable to the court).
Confidentiality issues
Confidentiality is not a bar to disclosure. However,
procurement cases raise particular issues because of
concerns about sensitive information being released
to competitors. In procurement cases, documents
or information asserted by a party (most often the
winning bidder) to be confidential are disclosed only
into a “confidentiality ring”.
Initially, a confidentiality ring may be set up
involving only the challenger’s external legal
advisers, to allow confidential documents disclosed
by the contracting authority to be reviewed at an
early stage. However, generally it will be important
for at least one direct client representative to be
able to review confidential documents, to facilitate
the giving of advice by and instructions to a client’s
external lawyers. Direct client representatives will
usually only be permitted to review confidential
information upon accepting restrictions in their
involvement in similar procurements within
specified geographical limits and for a specified time
period. Identifying appropriate representatives is
important and often challenging on account of the
restrictions. Recently retired senior personnel can
make good candidates, because the undertakings do
not impact their activities.
Sometimes it is necessary to refer to confidential
material in pleadings. Since pleadings are generally
open to the public on the court file, it is necessary
to take steps to ensure that outside access is given
only to non-confidential versions, with appropriate
redactions for confidentiality.
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