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Disclosure and procurement: confidentiality does not automatically preclude disclosure

11 December 2018

This article is taken from December's public matters newsletter. Click here to view more articles from this issue.


A recent decision in the Technology and Construction Court has ruled that even documents considered by one of the parties to be confidential can become disclosable in a procurement challenge, emphasising the importance of implementing confidentiality rings from an early stage to protect sensitive commercial information.

Marston Holdings Ltd v Ministry of Justice [2018] EWHC 3168 (TCC)

The Ministry of Justice (‘the MoJ’) was the contracting authority running a procurement exercise. Marston Holdings Limited (‘Marston’), the claimant and unsuccessful bidder, made an application against the MoJ for disclosure of its tender documents.

The procurement exercise concerned the supply of approved enforcement agency services on behalf of Her Majesty’s Courts & Tribunals Service (‘HMCTS’) by either awarding a single national contract or several separate regional contracts. Marston were notified that they had been awarded the top mark in Lot 8 of the procurement process (the potential national contract), but that they had failed in relation to Lots 1 and 7. The MoJ said they would not be awarding a contract in relation to Lot 8. Marston challenged the MoJ’s procurement process, alleging that there were defects in the evaluation of the tenders and that they should have been the winning bidder for the national contract.

The MoJ admitted that ‘a number of discrepancies and/or inaccuracies and inconsistencies’ were discovered in the evaluation of bidders’ submissions during the process. However, in their defence the MoJ stated that the assessment of the tenders was carried out in a lawful manner and in accordance with the disclosed criteria. They pleaded that during the moderation exercise, Marston’s scores were changed before deciding the final moderated score and that this process had applied equally to all bidders. Any errors in the procurement process had affected all bidders in equal measures.

Marston applied for specific disclosure of the MoJ’s tender documents.

The court was required to decide whether disclosure of the tender documents was necessary in order to fairly and proportionately dispose of Marston’s claim.

Outcome

In a successful challenge, Marston was considered to have an arguable case based on the fact that they had been awarded the top quality mark in relation to the proposed contract, but were not successful. The argument therefore at least raised the prospect of an issue that the court had to look at and their application was granted accordingly. Disclosure was considered to be necessary and proportionate.

The case determined that as long as any confidential information is not misused and is used solely for the purpose of resolving the issues in a case, documents containing such information will be disclosable.

View the judgment here.

Confidentiality rings

In this case, the terms of the confidentiality rings already in place were considered to provide adequate protection. There were two confidentiality rings. The first included the legal teams for each party to allow them access to all of the disclosed documents. The second confidentiality ring, set up later, allowed one representative of the client to review hard copy documents at his solicitors’ office. Documents would go into the first confidentiality ring in order to be reviewed by solicitors on each side. Following this review, if Marston considered it necessary for the client representative to review the documents, they must make a written request to the MoJ to identify the proposed information sought and explain why it is both reasonable and necessary to provide the client representative with access to the information.

A confidentiality ring affords a party the ability to disclose documents as per their obligations but also protect their confidentiality. In some circumstances it is advisable to have a number of confidentiality rings in place in respect of the different levels of disclosure. Such an agreement allows parties in dispute to manage disclosure without recourse to the court. It is also possible to avoid resorting to court proceedings by voluntarily disclosing key documents at the earliest opportunity.

Conclusions

It is crucial to strike the right balance between early disclosure of those documents relevant to the dispute, and the need to protect a client’s sensitive commercial information. The starting point is that documents are disclosable: documents are not automatically privileged on the basis that they contain confidential information. Confidentiality must be proven. If the information could be used to resolve the issues in a case, the court may make an order for their disclosure. In procurement disputes specifically, tender documents are typically relevant to the issues between the parties arising from a challenge by an unsuccessful bidder and on that basis are likely to be disclosable.

It is advisable to be proactive by implementing confidentiality rings in order to protect such information, or ensure that it will be privileged by other means in order to avoid an order for disclosure.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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