On 6 November 2016, the Technology and Construction Court considered an application by Marston Holdings Ltd (“Marston”) for specific disclosure of confidential tender documents arising out of a public procurement exercise run by the Ministry of Justice (“MOJ”).

Marston, a company which provides debt recovery and enforcement services to public bodies such as the HM Courts & Tribunal Service, brought a claim against the MOJ following a procurement process for the delivery of approved enforcement agency services. The OJEU notice advertised the award of a single national contract or separate regional contracts. Marston issued proceedings after the MOJ informed bidders that it had been awarded the highest quality mark for the potential national contract, however, it had not scored highly in respect of the regional contracts, and the MOJ decided not to award a national contract and only award regional contracts to the other successful bidders.

Marston challenged the MOJ’s procurement on the basis that the evaluation process was defective and applied for specific disclosure of one of the successful bidders’ tenders after the MOJ admitted that there had been discrepancies and/or inaccuracies in bidders’ submissions. The MOJ stated that bids were re-evaluated, any error affected all bidders equally and Marston would not have been awarded a national contract in any event.

In this application, the question for the Court was whether disclosure of the tender documents was required to enable it to dispose of the issues in the case fairly and proportionately.

Application granted

Marston’s application for specific disclosure of the tender documents was granted.

The Court held that:

1. the mere fact that documents might be confidential is not in itself an automatic defence to an application for disclosure;
2. Marston had raised a ‘prima facie’ case in the challenge which the court would need to consider based on the fact that it was awarded the top quality mark in relation to the proposed national contract but was not awarded one of the regional contracts;
3. errors had been identified in relation to the evaluation process for both Marston’s bid and others’ bids and therefore the evaluation and scoring of all tenders needed to be reviewed;
4. disclosure of the tender documents was necessary for the fair and proportionate disposal of Marston’s challenge to the evaluation process;
5. confidentiality rings would provide adequate protection to ensure that confidential information was not misused and the documents were used solely for the purpose of resolving the issues in the case.

Confidentiality rings

In this case, early disclosure of relevant parts of bidder’s tenders had been provided by the MOJ when Marston first issued a claim and two confidentiality rings had been created for disclosure of documents: one for the parties' legal teams and one for a client representative of Marston.

The successful bidder whose tender was the subject of Marston’s disclosure application resisted the application, maintaining that the relevant parts of the tender had already been disclosed and it was not necessary for the full tender to be disclosed.

The Court was, however, satisfied that full disclosure of the successful bidder’s tender was necessary and proportionate and that protections were adequate. If Marston’s legal team considered it necessary for their client representative to review any documents it was required to make a written request to the relevant party, explaining why it was reasonable and necessary. The client representative had provided undertakings that they would only review documents in hard copy at its lawyer’s offices, and that they would not be involved in any procurement relating to enforcement services for 12 months after the determination of Marston’s challenge.

How we can help

In a procurement dispute, a party’s tender documents are invariably relevant to the issues in dispute and therefore potentially disclosable. Tender documents are often requested by an unsuccessful bidder when weighing up whether to bring a challenge.

A confidentiality ring can be a useful tool to achieve a balance between the need for appropriate disclosure and the need to protect parties’ confidentiality, although the process can involve costly negotiations between lawyers. It can also be possible to avoid the need for court proceedings through voluntary early disclosure of key documents.

We have experience of assisting clients to navigate the potential pitfalls of responding to and seeking early disclosure in procurement disputes. We can also assist you to create a confidential ring and negotiate the terms of a confidentiality agreement, where necessary, in a cost effective manner.

Please contact Dylan Young, Jane Barker or Jade Carey for more information.