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Can you keep sensitive details private in procurement disputes?

Akin Akinbode

How can a party take a tender dispute to court while keeping valuable information private? A recent case shows how the courts manage this sensitive issue.

The UK courts are justifiably proud of the open and transparent justice they deliver on a daily basis. But this very transparency can cause a problem for those involved in procurement disputes.

When parties seek dispute resolution through the courts, they have to file their written particulars of claim or defences (known as ‘statements of case’) at court and refer to relevant supporting documents.

Under the Civil Procedure Rules (CPR) governing the ‘disclosure’ process, a party cannot withhold documents such as the tender or evaluation criteria just because they are commercially sensitive.

So how can a party take a tender dispute to court and keep its valuable information private?

The courts understand the confidentiality issues that arise in public procurement cases and a practice has arisen whereby the court clerks mark the papers ‘private’ to protect the parties’ confidentiality. This informal process came under scrutiny in a recent procurement case: Bombardier Transportation Ltd v Merseytravel [2017].

The facts

Bombardier, an unsuccessful tenderer for contracts forming part of the Merseytravel Rolling Stock Programme, made various allegations and a claim for damages relating to the tender process against Merseytravel.

The solicitors of another unsuccessful tenderer were interested in the details of the Bombardier dispute and requested copies of documents from the court file. Their request was refused on the basis that the file was marked ‘private’. They subsequently wrote to Mr Justice Coulson asserting that allocating privacy to the file was wrong in principle.

“Mr Justice Coulson had to consider how the courts should balance the need for open justice with the commercial need for businesses to protect confidential information from their competitors”

At the same time, Bombardier applied to the court for an order that neither its particulars of claim nor its confidential annexes should be provided to non-parties.

Mr Justice Coulson had to consider how the courts should balance the need for open justice with the commercial need for businesses to protect confidential information from their competitors. In resolving this conundrum, he was helped by a guideline prepared by the procurement bar and the Technology and Construction Court judiciary (which at the time was in draft – The TCC Guidance Note on Public Procurement Cases was launched on 17 July 2017).

On the facts, he decided that Bombardier’s particulars of claim were not confidential – although he allowed Bombardier to take further instructions about the extent to which the annexes were confidential (if at all).

The draft guideline for public procurement disputes

In reaching this conclusion, he relied on the following key elements of the draft guideline:

  • In deciding whether documents on the court file are to be treated as confidential or not, the starting point is the principle of open justice. All UK civil claims should be heard in open court unless there is a good reason for them not to be – and, as part of that process, all the documents on the court file should be publicly available.
  • The court will seek to manage the proceedings so that confidentiality is protected where genuinely necessary while ensuring the issue of confidentiality does not give rise to unnecessary cost or complexity. Assertions of confidentiality should only be made where properly warranted.
  • A document’s confidentiality does not mean that a party can withhold it from disclosure under the CPR.
  • If a party regards a document as confidential, that document should be marked as ‘confidential’ and preferably also marked with the level of confidentiality (‘tier one’, etc). Parties should consider printing confidential documents on coloured paper.
  • Parties should consider blocking out those elements of the papers that are confidential so that the public can still access the other parts of the document.
  • If necessary, the court can restrict public access to the court files (although such restriction does not prevent the public from applying for access).

Judicial recognition

Judges understand that major procurement contracts attract the same group of tenderers, who regularly compete against one another for transport-related contracts. They also understand that information within a tender might appear to the court to be of no commercial consequence, but could be very useful to a competitor.

The Bombardier decision reassures disputing parties that their confidential tendering information will be protected – albeit with a warning that there is no right to blanket confidentiality.

Parties can mark documents confidential before filing them with the court but only after analysing the contents of documents to ensure they are truly confidential. They should not abuse this option for privacy or take “an over-cautious approach to confidentiality”.

Akin Akinbode is a partner, and Tracey Summerell is practice development lawyer, in the construction team at Dentons

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