Unsuccessful tenderer allowed to examine confidential information
Published: 7 June 2017
Category: Legal News
The High Court has allowed Bombardier Transportation to examine confidential documents after it alleged that it had been treated unfairly in a public procurement exercise.
The issue arose after the company failed to win a £460m
contract to supply trains to Merseytravel.
The court heard that such contracts attracted the same group
of tenderers, who regularly competed against each other across the world. A
consent order had provided a confidentiality ring specifying individuals to
whom confidential information and highly sensitive documentation, including the
terms of the successful tender, could safely be disclosed.
Confidential information was to be supplied electronically,
but only the lawyers could view it in that form; non-legal external consultants
had to review it in hard copy. Highly sensitive documentation was to be
disclosed only in hard-copy form, and non-legal external consultants were not
entitled to review it at all.
Bombardier sought to vary which individuals within the
confidentiality ring could see which types of information and documentation.
The court agreed to the request on the basis that there was
nothing wrong with seeking to vary the terms of consent orders if practical
difficulties in complying with them subsequently arose. It ruled that the full
group within the confidentiality ring be permitted to review both the
confidential information and the highly sensitive documentation.
It was understandable that the defendant and successful
tenderer in cases like this might be concerned that such disclosure would
enable the claimant to trawl through the successful tender for information
justifying a separate complaint of unequal treatment.
However, such concerns about the potential for "fishing
expeditions" should not be taken too far.
Breaches of equal treatment obligations by contracting
authorities were not infrequent. Unsuccessful tenderers were entitled to fully
investigate comparative treatment of the tenders, either to confirm criticisms
already made or to found freestanding allegations.
Please contact Matthew Sigsworth in our Dispute Resolution
Team if you would like more information about the issues raised in this article
or any matters relating to contracts and litigation.