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Public Contract Tendering – You Are Entitled to Know Why You Have Lost

Disappointed tenderers for public contracts are often placed in a difficult position, in that they know that they have lost but they do not know why. That was certainly so in one High Court case concerning a multi-million-pound contract for the provision of a new traction system for a fleet of underground trains.

Following a public transport provider’s award of the contract to a rival, a company that had made an unsuccessful bid launched a challenge to the result under the Utilities Contracts Regulations 2006. The start of proceedings operated automatically to suspend the provider’s ability to enter into the contract.

The provider had applied to lift the suspension on the basis that there was no serious issue to be tried. However, the company, which wished to challenge the process by which bids had been evaluated, applied for disclosure of a large volume of documentary material connected to the tendering exercise. A case management issue thus arose as to which of those applications should be heard first.

The company argued that the reasons for its failure to win the contract were within the peculiar knowledge of the provider. It was submitted that the latter was seeking to achieve an unfair advantage in refusing to disclose documents that might either support, or contradict, its factual assertion that it had no case to answer.

The Court noted that it would, on the face of it, be inappropriate to decide whether or not there was a serious issue to be tried without sight of at least some of the documents that the company sought. Such disclosure would be necessary to enable the Court to deal with the issue on as full a basis as possible. The company’s application for specific disclosure would thus be dealt with first.