What’s happening in procurement law? Interesting recent cases and themes Mark Rhys-Jones, Eversheds LLP 12 November 2012

Introduction Limitation Dealing with commercially sensitive information Expert evidence Bid costs

Limitation (1) Council let tender for drug and alcohol services 21/12/11  C sought clarification from Council about TUPE arrangements 12/01/12  Council responded to C 09/02/12  C submitted tender with caveats 28/03/12  C (as unsuccessful tenderer) challenged award on basis:- –Info provided by Council inadequate –Alternatively, breach of an implied contract to act fairly Turning Point Ltd v Norfolk County Council [2012]

Limitation (2) Held:- Claim must be issued within 30 days of date C knows/ought to know of grounds for claim (Reg 47D) C knew of alleged infringement of PCR by 09/02/12 (date submitted tender) if not earlier No good reason for extension of time C’s claim therefore time barred Nb:- Possible implied contract due to wording of ITT However, no implied duty/term to act fairly Turning Point Ltd v Norfolk County Council [2012]

Limitation (3) – Comments Contrasts with Henry Bros (Magherafelt) Ltd v Department of Education [2012] –no breach occurred (so time did not start to run) until unlawful criteria in ITT actually applied Shorter limitation period restricts time available for parties to identify problems, share information, negotiate and take legal advice Co-operate with requests for information from bidders Exchange information fully and quickly – may help avoid claim being issued in first place Take legal advice as soon as grounds for concern arise

Commercially sensitive information (1) CSA let tender for single supplier framework agreement HHL unsuccessful and BUPA won award HHL challenged award on basis errors made in assessment of BUPA’s tender HHL sought disclosure of BUPA’s winning tender BUPA resisted disclosure on basis tender contained commercially sensitive / confidential information Healthcare At Home Ltd v The Common Services Agency [2011]

Commercially sensitive information (2) Held:- Balance to be struck between BUPA’s right to confidentiality and need for dispute to be disposed of fairly BUPA’s claim for confidentiality not strong:- –No sensitive technical info –Had not previously warned CSA of sensitivity –If disclosed, commercial prejudice minimal as much info already in public domain Disclosure ordered subject to agreement on safeguards to be implemented by HHL Healthcare At Home Ltd v The Common Services Agency [2011]

Commercially sensitive information (3) - How to avoid problems Contracting authority often “stuck in middle” Request notification from bidders of any sensitivities Treat all bidder information confidentially during and after the procurement process Avoid passing bidder information to third parties other than external advisors Only grant relevant personnel access to bidder material – limit unnecessary channels of internal communication Whilst subject to FOIA, exemptions may be available –Section 41 (confidential information); and –Section 43 (commercial interests)

Expert evidence (1) CGMA let tender for development contract C (as unsuccessful bidder) challenged award on basis manifest errors made in assessment of bids and that bid treated unequally C applied for permission to rely on expert evidence in relation to planning matters and financing BY Development Ltd v Covent Garden Market Authority [2012]

Expert evidence (2) Held:- Court’s function = limited review of decision to determine if unfair or based on manifest error Expert evidence not generally admissible or relevant in that context However, expert evidence may be admissible where:- –Technical explanations necessary –Discrete questions on tender criteria –Complex issues of causation BY Development Ltd v Covent Garden Market Authority [2012]

Expert evidence (3) – Comments Judgment may strengthen position of contracting authority:- –C not permitted to revisit entire tender process –Prevents attempts by C to aggregate minor errors in evaluation process –C must establish manifest error NB: illustration of similarities between PCR claims and judicial review

Bid costs Most bidding procedures expressly preclude tenderers from recovering bid costs However, challenges possible, e.g. if misrepresentation by contracting authority Reduce risk by: –Using clear wording in ITT documentation; –Maintaining clear audit trail of entire decision-making process Department for Transport – West Coast rail franchise

Contacts Mark Rhys-Jones Partner – Litigation and Dispute Management Tel: Mobile: +44 (0)

© EVERSHEDS LLP Eversheds LLP is a limited liability partnership.