If you snooze you lose - a story of railway sleepers

Two things which make claims for breach of the Public Contracts Regulations so daunting for unsuccessful bidders are the perceived inequality of arms in terms of the information available to the challenger and the Authority and the need to get on with the claim with more than usual speed.

Regular visitors to this site will know that sometimes a bidder might have as little as 10 days to make up its mind about whether to issue proceedings (compared to a 6 year time frame for breach of contract claims) and that once the button has been pushed a quirk of the Regulations and the court rules means that you only have a further 7 days to put in the detail of the claim (compared to 14 days normally).

It is not uncommon therefore to ask the Authority to extend the relevant time period and to provide relevant documents. Indeed the new Technology & Construction Court (TCC) guidance on public procurement claims encourages the early disclosure of documents if necessary into a confidentiality ring. But what if the Authority will not agree to extend time? It is not obliged to after all. What should a bidder do then?

If the latest decision from the TCC is anything to go by the one thing a bidder cannot do is ask the court to extend time without very good reason even where there is a perceived lack of information.

The dispute arose over a procurement for the manufacture and supply of railway sleepers. Proceedings were issued to automatically suspend contract award and in the subsequent application to lift that suspension the court was asked to consider a number of things.

In a combined application for an extension of time to serve its Particulars of Claim and for specific disclosure of documents Cemex were unsuccessful in persuading a judge that it was appropriate to leave service of Particulars until the documents had been disclosed. Whilst this may seem harsh at first sight in fact it emphasises some key points about procurement litigation which everyone should keep in mind.

Above all the court is not going to allow procurement litigation to drag on indefinitely. The nature of the dispute and in particular its impact on a third party (the winning bidder) and often the public at large requires that there should be as little delay as possible in achieving a resolution.

Secondly the bidder must focus on what its challenge is. It is not enough simply to assert that there is insufficient information to plead a claim. Here the principal ground of complaint was an alleged 'abnormally low' bid but the judge felt that there was enough information already available to enable this to be set out in sufficient detail without the need to see further documents or to require more time.

Thirdly any request for specific disclosure must be concise and focused on the actual documents needed and not a lot of other documents which might be sought perhaps in the hope of fleshing out additional claims.

And finally the judge appears to have taken a very dim view of the bidder's refusal to co-operate over the terms of a confidentiality ring into which the relevant documents could have been disclosed. In this case the bidder insisted that 2 people outside the legal teams should be included but those people were not prepared to give all the undertakings necessary to ensure the integrity of the ring.

As ever every case turns on its own facts but it is nevertheless a worthwhile reminder that the landscape for procurement claims is a challenging one which requires a clear focus on the actual issues an ability to act quickly and a degree of co-operation with the Authority encouraged by the TCC Guide.

Cemex UK Operations Ltd v Network Rail Infrastructure and another [2017] EWHC 2392 (TCC).

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