Public Law

A recent English High Court case raises some interesting points in relation to disclosure of documents and the lifting of an automatic suspension in procurement challenges.

In this case, an unsuccessful tenderer challenged the tender process and as a result, the award of the contract by the contracting authority (the Minister for the Cabinet) was automatically suspended.

The Minister applied to the court to lift the automatic suspension and, in turn, the claimant applied for the disclosure of certain documents prior to that hearing. The claimant argued that, without disclosure, there would not be a level playing field between the parties at the hearing and those documents would help it defend its case to keep the automatic suspension in place.

The court considered whether it was fair and just for the disclosure to be made prior to the hearing and refused the disclosure.

The judge reasoned that the questions to be considered when deciding whether to lift the automatic suspension were centred on (1) whether there was a serious issue to be tried; and (2) whether the balance of convenience favoured the lifting of the automatic suspension.

He stated that the court’s consideration would not be based on detailed or controversial evidence of the facts, and so thought that the claimant already had more than sufficient information available to at least argue that there was a serious issue to be tried. There was therefore no need for the court to order further disclosure.

Although this case relates to the English procurement regulations, the test applied by the court in lifting the automatic suspension in Scotland is largely the same. The case therefore raises some interesting points for Scottish contracting authorities and contractors alike, about the extent and timing of the disclosure required by an authority applying to lift the automatic suspension of a tender process.

If you’d like any further information on these issues, please get in touch.

 

Government, Regulation and Competition Law

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