Unsuccessful tenderer allowed to examine confidential information

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 Neil O’Callaghan if you would like more information about the issues raised in this article or any matters relating to contracts and litigation.