Disclosure of Documents

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Region: EU

Protection of confidentiality must be balanced with transparency, effective judicial protection and good administration. A contracting authority must provide a challenger with the essential content of the winning bid, while preserving confidentiality of portions of the bid which merit protection.

Re: access to parts of a competitor’s tender

See, also, the CJEU’s press summary of the case

“64      As regards, lastly, the practice, described by the referring court, whereby, in the Member State concerned, contracting authorities accept requests from tenderers to classify as trade secrets any information that they do not wish to disclose to competing tenderers as a matter of course, it must be stated that such a practice, on the assumption that it has actually been put into effect, which it is not for the Court to ascertain, is liable to undermine not only the balance between the principle of transparency set out in Article 18(1) of Directive 2014/24 and the principle of confidentiality referred to in Article 21(1) of that directive, but also the requirements, recalled in paragraph 50 of this judgment, of effective judicial protection, and the general principle of good administration, which derives from the obligation to state reasons.

65      In that regard, it must be borne in mind that the contracting authority cannot be bound by an economic operator’s mere claim that the information submitted is confidential but must require that that operator demonstrate the genuinely confidential nature of the information which it claims should not be disclosed (see, to that effect, judgment of 7 September 2021, Klaipėdos regiono atliekų tvarkymo centras, C‑927/19, EU:C:2021:700, paragraph 117).

66      Furthermore, in order to comply with the general principle of good administration and to reconcile the protection of confidentiality with the requirements of effective judicial protection, the contracting authority must not only state the reasons for its decision to treat certain data as confidential but must also communicate in a neutral form – to the extent possible and in so far as such disclosure is capable of preserving the confidentiality of the specific elements of that data which merit protection on that basis – the essential content of that data to an unsuccessful tenderer which requests it, and in particular the content of the data concerning the decisive aspects of its decision and of the successful tender (see, to that effect, judgment of 7 September 2021, Klaipėdos regiono atliekų tvarkymo centras, C‑927/19, EU:C:2021:700, paragraphs 122 and 123).

67      Thus, the contracting authority may, inter alia and in so far as it is not precluded from doing so by the national law to which it is subject, communicate in summary form certain aspects of an application or tender and their technical characteristics, in such a way that the confidential information cannot be identified. In addition, assuming that the non-confidential information is adequate in order to ensure that the unsuccessful tenderer’s right to an effective review is respected, the contracting authority may request the successful tenderer to provide it with a non-confidential version of the documents containing confidential information (judgment of 7 September 2021, Klaipėdos regiono atliekų tvarkymo centras, C‑927/19, EU:C:2021:700, paragraphs 124 and 125).

68      In the light of all the foregoing considerations, the answer to the first question is that Article 18(1) and Article 21(1), read in conjunction with Article 50(4) and Article 55(3) of Directive 2014/24 must be interpreted as precluding national legislation on public procurement which requires that, with the sole exception of trade secrets, information sent by the tenderers to the contracting authorities must be published in its entirety or communicated to the other tenderers, and as precluding a practice of contracting authorities whereby requests for confidential treatment in respect of trade secrets are accepted as a matter of course.

…

85. … Article 18(1), Article 21(1) and Article 55 of Directive 2014/24 must be interpreted as meaning that the contracting authority must, in order to determine whether it will refuse a tenderer whose admissible tender has been rejected access to the information which other tenderers submitted concerning (i) their relevant experience and the references relating thereto, (ii) the identity and professional qualifications of the persons that they have proposed to perform the contract or the sub-contractors and (iii) the design of the projects to be performed under the public contract and the manner of performance of that contract, assess whether that information has a commercial value outside the scope of the public contract in question, where its disclosure might undermine legitimate commercial concerns or fair competition. The contracting authority may, moreover, refuse to grant access to that information where, even though it does not have such commercial value, its disclosure would impede law enforcement or would be contrary to the public interest. A contracting authority must, where full access to information is refused, grant that tenderer access to the essential content of that information, so that observance of the right to an effective remedy is ensured.”

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Region: EU

Grand Chamber Judgment

Re: access to parts of a competitor’s tender

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Region: Ireland

Court of Appeal upholds High Court limiting discovery in three categories the subject of the appeal, concerning (i) communications relating to training; (ii) extracts of the evaluation report; and (iii) alleged political interference

Noonan J

The court followed the leading Irish authority on discovery in procurement cases – Word Perfect Translation Services Limited v Minister for Public Expenditure and Reform [2020] IESC 56. This included the so-called iterative approach, whereby certain discovery could be withheld until the trial and only disclosed where the trial judge deemed it necessary.

Noonan J rejected an argument that the Irish law approach to discovery in procurement cases had to be re-assessed following the CJEU rulings in Case C-927/19 Klaipédos and Case C-54/21 Antea Polska S.A. CHC had sought to rely, in particular, on [66] of Antea Polska:

“[In] order to comply with the general principle of good administration and to reconcile the protection of confidentiality with the requirements of effective judicial protection, the contracting authority must not only state the reasons for its decision to treat certain data as confidential but must also communicate in a neutral form – to the extent possible and in so far as such disclosure is capable of preserving the confidentiality of the specific elements of that data which merit protection on that basis – the essential content of that data to an unsuccessful tenderer which requests it, and in particular the content of the data concerning the decisive aspects of its decision and of the successful tender.”

Noonan J reiterated the analysis in Word Perfect Translation Services Limited v Minister for Public Expenditure and Reform [2020] IESC 56 where the Supreme Court had found the Irish approach compatible with EU law. The Judge went on at [25]-[26]:

“The decision in Antea Polska is not addressed to discovery applications in litigation.  In that context, the judgment in Word Perfect has express regard to the relevant EU jurisprudence including Varec, reaffirmed in Klaipėdos.  That judgment also confirms the position adopted in previous cases that each Member State enjoys procedural autonomy in relation to safeguarding the rights of parties in procurement cases.

Moreover, the balancing exercise which is a central feature in the judgment of the Supreme Court in Word Perfect is mirrored in the judgment in Klaipėdos (at para. 50):

“… The principle of the protection of confidential information must be reconciled with the requirements of effective judicial protection.  To that end, the prohibition laid down in Article 21(1) of Directive 2014/24 must be weighed against the general principle of good administration, from which the obligations to state reasons stems.  That balancing exercise must take account of the fact that, in the absence of sufficient information enabling it to ascertain whether the decision of the contracting authority to award the contract is vitiated by errors or unlawfulness, an unsuccessful tenderer will not, in practice, be able to rely on its right, referred to in Article 1(1) and (3) of Directive 89/665 to an effective review … .”

The contention that CHC is entitled as of right to the “essential content” of Bristow’s tender in a discovery application would set at naught the well-established criteria of relevance and necessity, which must be established before any balancing exercise is undertaken.  That exercise is one for the courts of the Member State concerned as the CJEU recognises in Klaipėdos at para. 135:

“… it is for the competent national court to reconcile the applicant’s right to an effective remedy, within the meaning of Article 47 of the Charter, with that operator’s right to the protection of confidential information”.”

On the specific categories:

Category 1(a), re communications concerning alternative training – the Court of Appeal agreed that it should not extend to documents submitted by the winning bidder, Bristow, to the Minister, given confidentiality concerns.

Category 3A, re the evaluation report – the Court of Appeal agreed that it was not appropriate to disclose all of the evaluation report, which would require disclosure of every aspect of the evaluation, even though not all aspects were in issue in the proceedings. It was correct to limit discovery to certain sections of the report, appropriately redacted. CHC was allowed to apply for further discovery, if necessary, once the documents were examined (the iterative approach).

Category 7, re statements by a senator – the limited discovery ordered was proportionate and the High Court judge was entitled to make that order.

 

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Region: Ireland

Irish Supreme Court directed a phased approach to discovery, with certain documents to be immediately discovered (subject to redactions to preserve confidentiality) and with the possibility for the applicant to later apply to the trial Judge for further discovery

Clarke C.J.

General Principles

“8.4 Without being exhaustive, the following principles can be identified.  First, and importantly, the fact that information may be confidential is not, in and of itself, a barrier to its disclosure.  Second, the requirement that discovery be proportionate includes a requirement that there needs to be a balance struck between the extent to which ordering discovery of a particular category of document may give rise to the disclosure of confidential information (including especially highly confidential information and information confidential to third parties), on the one hand, and the extent to which it may be reasonable to anticipate that the information concerned may be important to a just and fair resolution of the proceedings, on the other.  Third, it may be disproportionate to direct discovery which would involve the disclosure of confidential information where no credible basis has been put forward for suggesting that there is a sustainable basis for that aspect of the claim in respect of which it is said that the confidential information concerned is relevant.  In this latter context, in relation to procurement proceedings, the extent to which adequate reasons for the result of the procurement process have been given may be relevant for it may breach the requirement that there be an effective remedy if a party obtains very limited information about why the result wen the way it did and is then told that it cannot have discovery because it has not put forward a credible basis for suggesting that there was anything wrong with the procurement process.  Fourth, it is recognised generally that a judge conducting a substantive hearing of proceedings may well be in a better position to identify whether the disclosure of confidential information is really necessary to enable a fair result of the proceedings to be achieved.  On that basis procedures can, and are, put in place to ensure the retention of documentation and the availability of those materials at the hearing should the trial judge consider it necessary.”

No Special Rules for Discovery in Procurement Cases

“8.5 It seems to me that those principles have particular application in the context of procurement cases, precisely because the procurement process will, as the CJEU pointed out in Varec, almost invariably involve commercially sensitive and confidential information in the shape of the tenders submitted by competitors.  However, it does not seem to me to follow that there is any proper basis for suggesting that any different approach is required to discovery in procurement cases.  It is undoubtedly true that issues about the disclosure of confidential information are likely to loom much more largely in such cases, but that is only because of the nature of the case rather than the need to have different rules.  The same approach would be adopted in any other form of proceedings in which information, to which a similar level of confidence attached, might be involved.  There is not, nor should there be, any special rule for discovery in procurement cases but it is important to recognise that the application of general rules may be somewhat different in procurement cases when compared to other cases which do not involve the same level of confidential information.  On that basis, it does not seem to me that there could be any question of a breach of the principle of equivalence.  Exactly the same approach would be adopted by an Irish court in assessing how to approach a request for discovery of confidential information in any other proceedings.”

Each case to be considered on its own merits

“However, it also seems to me that the general approach which I have identified makes clear that the asserted need of a challenger to obtain information for the purposes of substantiating its claim will not necessarily trump, in all cases, the need to protect confidential information furnished to the awarding authority by its competitors.  But likewise, the need to protect such information will not always trump an assertion on the part of the challenger of the relevance and necessity of the disclosure sought.  As in all other discovery cases involving confidential information, each case will have to be considered on its own merits and having regard to its own circumstances, with an order being fashioned which minimises the risk of injustice and which ensures a fair and just resolution of the proceedings with the minimum disclosure of confidential information necessary to achieve that end”

The Irish law on discovery is compatible with EU law

“8.15 [It] does not seem to me that Irish discovery law fails to strike the balance identified in Varec.  In appropriate cases, and to the appropriate extent, a challenger can have access to even the most highly confidential information should that prove necessary to a fair and just resolution of the proceedings.  At the same time there is no automatic entitlement to highly confidential information emanating from rival bidders.  That seems to me to be precisely the balance which the CJEU has indicated should be struck and it seems to me to be the balance which operates in Irish discovery law generally and, in particular, how that discovery law applies in the particular circumstances of procurement cases.” [8.15]

Confidentiality Rings may be used; although can create difficulties

“8.7 In that latter context it is also worth noting that some additional comfort may be obtained if confidential materials are made available under a so-called “confidentiality ring”.  A confidentiality ring allows for limited disclosure of otherwise confidential documentation and information.  Where a confidentiality ring is in place, the confidential documents and information in question are ordinarily made available in confidence only to the parties’ legal advisors.  In circumstances where the information in question relates to a scientific or technical matter, the confidentiality ring may be expanded to include experts in that field.  Where a confidentiality ring is established, it is usually provided for in the order for discovery.

8.14 Furthermore, it should, be observed that, in certain circumstances, a confidentiality ring may itself cause difficulties.  The practical issues which can arise depend on the extent to which it may be possible for lawyers (and sometimes experts) to be able adequately to put forward the case, based in part on information obtained under a confidentiality ring, without instructions or information from their client.  Where, for example, there may be competing expert scientific evidence, it may well be possible for lawyers and relevant scientists to formulate a client’s case without reference to any specific information which the client may have.  But that will not always be the case.  The availability of a confidentiality ring is, therefore, a factor to be taken into account but it does not always provide a suitable safeguard.”

Disclosure of evaluation of challenger’s tender may require redaction if it refers to other tenders

“8.16 Before going on to deal with how those general principles should be applied in the particular circumstances of this case, it is necessary to touch on two matters.  First, in the particular context of procurement cases, it needs to be observed that it is difficult to envisage circumstances where the disclosure of an evaluation of the challenger’s own tender could be refused on the grounds of confidentiality.  It might, of course, be that certain aspects of that evaluation might be considered irrelevant to the case as pleaded and thus disclosure not be required.  It must also be acknowledged that, depending on the way in which any relevant evaluation was carried out, there might well be sections of an evaluation report which addressed not only the assessment of the challenger’s tender in some particular respect but also, in comparative terms, the assessment of other competitors including the successful tenderer.  Such an assessment might well be expected to reveal commercially sensitive details of a competitor’s tender.  More detailed analysis would be required in such a case to ensure that there was no unnecessary or inappropriate disclosure of confidential information pertaining to rival tenders unless, in accordance with the principles which I have identified, such disclosure was truly required for the just resolution of the proceedings.  Redaction might well form an appropriate approach in such circumstances, subject again to the possibility that the trial judge might ultimately consider, having regard to a more detailed understanding of the issues as emerged at the trial, that some or all of the redaction in question ought be removed and unredacted versions made available.  Redaction in that way is, of course, a procedure frequently adopted in dealing with discovery applications where confidential information is involved.”

Particular categories

Re claims that the winning bid was abnormally low: “10.9 Insofar as issues have been raised concerning what is said on behalf of Word Perfect to amount to an impermissibly low tender on the part of the successful party, I am not presently persuaded that it has been demonstrated that documents in that regard require to be discovered.  In normal course, the question of an excessively low tender arises in the context of an awarding authority declining to award the contract concerned to a tenderer about whom it may be said that the tender is so low as to cast doubt on the ability of the tendering party to perform the contract at that price.  On the other hand, disclosing information in regard to the successful party’s tender would involve Word Perfect gaining access to highly sensitive commercial information concerning the pricing structure (and possibly the cost base) of a major competitor with whom it is in frequent competition.  In accordance with the principles identified earlier in this judgment such information should only be disclosed where it becomes clear that it is necessary to a just resolution of the proceedings.  I would, however, leave it open to the trial judge, in the light of any preliminary views which the trial judge took as to the law, to direct that some disclosure in this regard might be required.  The method for permitting this will be addressed later.”

Re criteria/sub-criteria where there was a small margin between the winner and challenger: “10.10 The next set of issues arise in respect of those categories where the Minister suggests that a requirement to make discovery would be disproportionate because the margin between the successful tenderer and Word Perfect was very small.  In that context, counsel for Word Perfect makes the point that the evaluation is a cumulative one and a series of small differences can add up.  However, the starting point has to be to recognise that the assessment did give quite a significant winning margin to the successful tenderer. At the outcome of the tender process, Word Perfect was awarded 848.37 marks, and the successful tenderer was awarded 949.15 marks. The difference between the two tenders was 100.78 marks, of which 57.7 marks were attributable to the costs criteria. It is clear that this margin could not, in itself, be narrowed significantly, let alone closed by a small number of errors being identified each one of which only made a difference of one or two points.  On the other hand, if Word Perfect is able to persuade the trial judge that it should succeed on some of the areas where there was a significant difference between the marking of the respective parties, then it remains possible that some further small victories could make a difference to the overall result.  Again, based on the principles identified earlier in this judgment, I would propose that discovery not be ordered now in relation to those categories involving a very small margin but rather that this matter can be revisited by the trial judge if, in the light of how the trial judge views the case as a whole, it is felt that success on some of those relatively marginal matters might ultimately be able to tip the balance in favour of Word Perfect.”

Re criteria/sub-criteria where no reason were given because Word Perfect scored equal/higher to the winner: “10.11 I turn next to those areas where Word Perfect was not given any reason for the marking in the area concerned because, relying on the judgment of Barrett J. in Word Perfect Translation Services Ltd. v. Minister for Public Expenditure and Reform [2018] IEHC 237, the awarding authority did not consider it necessary to give such reasons where Word Perfect obtained equal or greater marks than those given to the successful tenderer.  Obviously granting discovery in this respect might well result in the giving of reasons which the Minister claims not to be obliged to do.  Whether the Minister is correct in that regard may be a matter for the trial judge.  It may, however, be useful to consider a very simple example.  One might assume a tender process where there were only two criteria of equal weighting, being price and quality.  We might also assume that there were only two tenderers.  Price is, of course, capable of fairly exact mathematical comparative calculation.  Even where price may be determined in accordance with complex formulas, the method of assessment will normally be specified in advance.  For example, a long term income stream may be specified as being converted to a current sum with a net present value calculated by reference to a specified discount rate.  Be that as it may, it is easy to envisage a case where it could be shown, objectively, that the unsuccessful tenderer was 1% dearer than the successful tenderer.

10.12 However, in such a case it would hardly be particularly surprising if the slightly more expensive tender was also higher in quality.  The ultimate outcome of the tendering process would, in such circumstances, depend on whether the unsuccessful tenderer was assessed as having quality not more than 1% better than its competitor, for if it was assessed as having a greater margin on the quality side then this would inevitably outweigh its slight disadvantage on price.  In those circumstances the whole tendering process would depend on whether (say) the more expensive tender was deemed to be 1.5% better on quality or only 0.5% ahead.  In both cases the more expensive tender would have obtained higher marks than its competitor and would, on the existing case law cited, not be entitled to any reasons.  However, those reasons would be the very nub of the assessment for they would entirely determine who was to be the winner.

10.13 However, for present purposes, it is only possible to say that this is an issue which may need to be determined as a question of law.  I would, however, be concerned if it should transpire that an unsuccessful tenderer is put in a position where it is given no reasons as to why it might not have had a better margin over its competitor in an area where it did well and also then be informed that it could not have discovery in relation to any issues which might arise in such areas.  There would, in such circumstances, potentially be a real risk that there might not be an effective remedy.

10.14 As noted earlier in the commentary on the UK case law, it may be reasonable to expect a party who has been given detailed reasons to go itself into some detail as to how it can be maintained that there is a credible basis for suggesting a manifest error before giving that party access to confidential information.  The situation will not be at all the same where the party concerned is not, on whatever basis, given any reasons at all.  In those circumstances I would favour the approach adopted by Hogan J. in Word Perfect (No 2) and direct discovery in respect of those areas where no reasons were given.  The discovery concerned should involve disclosure of the assessment of the awarding authority of Word Perfect’s tender, together with any aspect of the remainder of the evaluation in respect of those areas which can be disclosed without revealing sensitive commercial data submitted by competing parties.  It is worth noting, however, that this discovery should, at least at this stage, be limited to the evaluation report (redacted as appropriate), and should not include the prior drafts of the evaluation report nor documents relating to the successful tender.  Once Word Perfect has obtained such discovery, I would emphasise that it would be open to it to seek to persuade the trial judge to disclose further information if it can make out a credible basis for suggesting that such additional information is truly necessary to a just and fair resolution of these proceedings.  I would also emphasise that discovery of these documents is granted solely on the basis that Word Perfect did not receive any reasons for the marking in the areas concerned.  In circumstances where a public authority had furnished an unsuccessful tenderer with reasons for its marking, it would be much more difficult for that tenderer to make an argument that it is entitled to discovery of documents relating to areas where it outperformed the successful tenderer.”

Re claims of undisclosed award criteria: “10.15 Insofar as issues have been raised concerning the application of undisclosed tender criteria by the Minister in the evaluation process, I would, again, direct that discovery is granted of the evaluation report, subject to redaction. In order for Word Perfect to assess how the various award criteria were treated by the Minister during the evaluation process, and to then advance its case for judicial review, it is necessary for it to have sight of the evaluation report. Once Word Perfect has obtained this discovery, I would, again, emphasise, that it would be open to it to seek to persuade the trial judge that discovery of further documents is needed for the fair resolution of proceedings”

Iterated Discovery

“11.1 As noted earlier, there are a number of types of document where I propose that immediate discovery not be ordered but that the position be preserved so that the trial judge can require further disclosure should it become clear at the hearing that such disclosure is necessary for a just and fair resolution of the proceedings.  In that context it is appropriate to note that the Remedies Directive does require that parties wishing to challenge public procurement decisions should have access to a speedy process.  The approach that I suggest should be adopted in appropriate procurement proceedings involves directing immediate discovery of documents which are relevant and which either do not involve confidentiality (or any other issue which might be relied on to suggest that relevant documents did not have to be disclosed) or where it is clear, even at the interlocutory stage, that the disclosure of confidential information will be required but where it is left to the trial judge to determine whether further disclosure may be necessary.  It seems to me that this approach is one which improves the likelihood of a speedy resolution to the proceedings.

11.2   Where an iterated process is required in order to achieve a proper balance between the competing interests of effectiveness and confidentiality, then a speedy resolution would not be achieved if there were to be a series of separate interlocutory applications for discovery.  It is for that reason that I propose that any second round of additional discovery should be left to the judge actually conducting the full hearing rather than a process which might involve a second or third motion for discovery in advance of that hearing.

11.3   I should also indicate that the comments which I have made concerning further disclosure being directed by the trial judge should be taken as applying equally to a situation where immediate discovery is made of documentation which may be redacted and where the trial judge may have to consider whether the making available of an unredacted copy (either in whole or in part) may be necessary for the just and fair resolution of the proceedings.

11.4   I would propose that the Court should direct that all documents in respect of which it is appropriate to adopt such an iterated approach should be the subject of an affidavit sworn contemporaneously with the main affidavit of discovery.  However, that additional affidavit should not be handed over at that time.  The affidavit, together with the documents referred to in it, should be available in court so that there can be immediate disclosure of any materials which the trial judge directs.  For the avoidance of doubt, that should include unredacted copies of any documents in respect of which a redacted copy is made available at this stage.”

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Region: Ireland

In a supplementary judgment to [2020] IESC 56, the Supreme Court rejected a proposed protocol which could have resulted in the High Court directing further discovery (in addition to what was ordered) in advance of the trial

Clarke CJ

This judgment followed the Supreme Court’s substantive judgment on this discovery appeal – Word Perfect Translation Services Limited [2020] IESC 56.

The Court rejected a protocol proposed by Word Perfect whereby discovery would be inspected, and with regard to confidential material, possibly firstly by lawyers only, with further applications then potentially being made.

The proposed protocol was described as follows in the judgment:

“2.1 The proposal put forward by Word Perfect involved a “Protocol of Inspection” (“the protocol”) which would enable the High Court to direct further discovery in advance of the hearing and after Word Perfect had received such discovery as this Court might now order.

2.2     The protocol proposes that certain documents in respect of which discovery is ordered might be redacted on the grounds of confidentiality and/or commercial sensitivity. The protocol proposes a mechanism by which, first, the Minister would consider whether redaction was considered appropriate and, if so, refer the documents in question to other tenderers (so that those tenderers could consider the proposed redaction) and, second, disputes in relation to any redaction could be brought before the High Court to be considered and determined.

2.3     In more detail, the protocol provides that any parts of the discoverable documents which were generated by the Minister, and which were considered by the Minister to be confidential or commercially sensitive to a tenderer, could be redacted.  Insofar as any part of these documents referred to one of the tenderers, and/or contained any information which may have been confidential or commercially sensitive to that tenderer, the protocol provides that the Minister should furnish copies of the material parts of those documents to the tenderer concerned and request that party to identify any parts which they considered should be redacted on the basis of containing confidential and/or commercially sensitive information.  In respect of any discoverable documents which were generated by a tenderer, the protocol likewise suggests that the Minister should furnish copies of the material parts of those documents to that tenderer and that the tenderer concerned could indicate any parts which they consider should be redacted.

2.4     The protocol then proposes that, in circumstances where Word Perfect is dissatisfied with the scale or nature of the redaction of the discovery documentation, Word Perfect should be entitled to nominate lawyers to review unredacted versions of the documentation in question.   Those lawyers would be required to undertake not to discuss the content of the material identified for redaction with Word Perfect without first obtaining the consent of the person whose documentation is at issue.  Where such consent is not forthcoming, the protocol suggests that the lawyers in question should only be entitled to disclose the content of the redacted material if granted leave to do so following an application to the court.  Finally, the protocol suggests that, if it is not possible to resolve any issues relating to confidentiality or commercial sensitivity, such issues could also be the subject of an application for directions to the court.”

“2.9 I am not persuaded that Word Perfect has put forward a sufficient basis for suggesting that this Court should, in substance, depart from the view which it has already taken as set out in the principal judgment.  There can, undoubtedly, be practical difficulties encountered if, in the middle of a trial, a judge directs the disclosure of a significant volume of additional material.  However, on the other hand, the whole point of the regime on which this Court determined in the principal judgment was that it was likely that the trial would have to progress to at least some material extent so as to enable the trial judge to have a sufficiently detailed understanding of the real issues so as to be, therefore, in a position to make a more informed judgment on whether the disclosure of confidential information was truly necessary.”

The remainder of the judgment concerned details of the specific categories and costs.

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Region: Ireland

High Court rejects discovery of successful tenderer's pricing structure in abnormally low pricing claim and reject's application for a director of the Applicant to be included in a confidentiality ring

Twomey J

The case concerned a €75 million contract for managing agent services in connection with a retrofitting scheme. The Applicant was the incumbent.

“35. In summary, one is dealing with the disclosure not just of confidential information, but of confidential information relating to pricing. Furthermore, it relates to the disclosure of this pricing information as part of a challenge to a procurement process and so disclosure to a competitor (the losing tenderer). Not only that, but it relates to the disclosure of the pricing structure of a winning bid that was allegedly too low, i.e. that was arguably too competitive (against a backdrop of a public policy of seeking to promote ‘competitive’ tendering).

36. It seems clear to this Court that there is a high bar to cross when it comes to disclosing the pricing structure of a winning tenderer who has competitively won a tender, particularly where the losing tenderer alleges that it was underbid by a tender price that was too low/too competitive. This Court concludes that the caselaw makes clear that a court should only disclose this information where it is absolutely necessary to achieve a just resolution of the proceedings.”

“44. [The] key issue in dispute between the parties is not whether or not the tender was abnormally low, since it is clear that, after reviewing the tenders, the SEAI reached the conclusion that Abtran’s tender appeared to be abnormally low. For this reason it undertook a process, in which it required Abtran to explain its pricing and in which the SEAI considered whether Abtran satisfactorily accounted for the apparently low pricing…

[The] focus of the trial judge will not be on whether Abtran’s bid was abnormally low. Rather, the key issue in dispute is whether the process adopted by the SEAI complied with the foregoing provisions of Regulation 69 and Section 19.

…

45. [Information] about pricing structure is not necessary to be disclosed in a dispute about how the SEAI reached its decision, particularly when the SEAI has already agreed to provide the following discovery to KSN:

“Category 2

All documents evidencing and/or recording SEAI’s consideration of the issue of whether the tender submitted by Abtran was abnormally low, including but not limited to:

• • the final evaluation report;
  • any and all preceding drafts of the evaluation report;
  • minutes and/or attendance notes taken during the evaluation by the SEAI’s evaluation committees;
  • emails, notes, memoranda, and diary entries relevant to the evaluation process;
  • any video or audio recordings of the evaluation meetings;
  • internal deliberations relating to the evaluation;
  • calculations relating to the evaluation;
  • any instructions, advice or communications issued between, to or from any member of the SEAI’s evaluation committee, including the ICPA or any person communicating on their behalf prior to and/or during the evaluation process relating to the award of the contract and/or the application or marking of the aforementioned criteria, including any marking schemes.

…

Category 3

All communications between the SEAI and Abtran after the submission of tenders up to the date of the notification of the decision to award the Contract with regard to the Cost Criterion, including, but not limited to, the communications referred to at paragraphs 98-109 of the Amended Statement of Opposition.

…

Category 5

All documents evidencing and/or recording the SEAI’s and/or ICPA’s consideration of whether Abtran complied with the Service Delivery Selection Criterion and, in particular, all documents evidencing and/or recording the SEAI’s consideration of Abtran’s experience in providing managing agent type services of similar scope, scale, duration and complexity to those under the Contract; and any relevant parts of the Abtran tender setting out the experience relied upon by Abtran in order to satisfy the Service Delivery Selection Criterion.”

46. When one considers the key issue in dispute, it seems to this Court that the documentation caught by these three categories, and in particular the post-tender communication between the SEAI and Abtran, is what is relevant and necessary to its resolution.

47. In addition, it is to be noted that the SEAI, although believing that it was not required to make any discovery under Categories 1 and 6, nonetheless made the following offers in order to avoid the necessity for a court hearing on KSN’s discovery application:

“(i) Discovery of Category 1 on an iterated basis;

(ii) Discovery of relevant extracts of the evaluation report in relation to Category 6(a); and

(iii) Discovery of Category 6(b) on an iterated basis.”

In relation to the confidentiality ring, the Judge rejected a proposal that a director of the Applicant be included in the ring.

“59. KSN argues that one of its directors (Mr. Travers) should be permitted to be part of the confidentiality ring. In order to persuade the Court to make such an order, Mr. Travers offers to give an undertaking that he would not be involved in any re-running of this tender (if one was ordered), that he would not disclose any confidential information acquired if he was part of the confidentiality ring or use it for any purpose, other than the proceedings…

62. [Just] as significant as the difficulty in policing such an undertaking is the fact that confidential information in relation to pricing or pricing structures, once it is known to Mr. Travers, cannot be unknown. Thus, even with the best will in the world, it will be difficult for a person in receipt of this information to avoid using it unconsciously. For this reason, this Court does not believe that the undertaking offered by Mr. Travers is the answer or ameliorates sufficiently the implications of him being in possession of the confidential information of a competitor, such as to permit him to be admitted to the confidentiality ring…

64. [One] needs first to consider what Clarke C.J. said about confidentiality rings in Word Perfect Translation Service Limited v Minister for Public Expenditure and Reform [2020] IESC 56 at para 8.7:

“Where a confidentiality ring is in place, the confidential documents and information in question are ordinarily made available in confidence only to the parties’ legal advisors.  In circumstances where the information in question relates to a scientific or technical matter, the confidentiality ring may be expanded to include experts in that field.  Where a confidentiality ring is established, it is usually provided for in the order for discovery” (Emphasis added)

…

66. In his judgment Clarke C.J. quotes from SRCL v National Health Service Commissioning Board [2018] EWHC 1985 where Fraser J., citing from the judgement of Hamblen J. in Libyan Investment Authority v Société Générale SA and others [2014] EWHC 550 (Comm)) stated:

…

“(2) The inherent desirability of including at least one duly appointed representative of each party…”

…

“68. Firstly, Clarke C.J. is simply quoting a paragraph which contains five sections, one of which refers to the desirability of a duly appointed representative. Secondly, while he quoted this extract, he did not adopt this extract as a statement of the law. Thirdly, from this quotation, it is not clear if this reference to a ‘representative’ of a party is intended (by Clarke C.J.) to be a reference to a lawyer, an independent expert, or some other third party, who would be a ‘representative’ of a litigant or whether a ‘representative’ of a party is intended to be an employee/officer of that party. Fourthly, and most importantly, when it comes to Clarke C.J.’s own words, rather than the words of the extract from which he quotes, he makes absolutely clear that the default rule is that the documents in a confidentiality ring are ‘ordinarily made available in confidence only to the parties’ legal advisors’ and he makes no reference to this default rule extending to employees/officers of a party. Fifthly, this extract is clearly obiter, since Clarke C.J. did not admit an employee/office of the applicant to a confidentiality ring in that case. Thus, in this Court’s view, it is clear that the default rule is that confidentiality rings are restricted to the lawyers.

…

70. Since this is the default rule, this Court can see no basis for extending the confidentiality ring to Mr. Travers. In particular, this Court does not accept that there is any particularly specialised feature of the discovered documentation, dealing as it does with BERs, surveys, inspections etc. Furthermore, this Court does not believe that this is such a specialised area that it cannot be explained by Mr. Travers to his lawyers. Moreover, it could not be said to be scientific or technical information, which was referenced by Clarke C.J., as the only exception area which might justify the extension of the confidentiality ring (but even then, Clarke C.J. did not see it as justifying the extension of the confidentiality ring to one of the parties to the litigation as sought by KSN, but rather to an independent expert).”

View Case

Region: Ireland

In claim that successful tenderer should have been excluded for submitting below market rates, discovery was ordered of documents relating to the evaluation of pricing and also the successful tenderer's tender; to be subject to a confidentiality ring

Twomey J

Discovery ordered of evolution materials concerning pricing submission, where claim of non-compliant rates was made:

“17. Just as in the Word Perfect case, it seems clear to this Court that Electric Skyline will not be able to advance its case that Donegal County Council ought to have disqualified SSE’s tender for containing non-compliant rates or its case that Donegal County Council treated Electric Skyline and SSE unequally, unless it has access to all documentation in Donegal County Council’s possession regarding the evaluation of SSE’s tender.

18. Accordingly, discovery will be ordered, subject to certain confidentiality commitments to be discussed with counsel, in the following terms:

“All documents referred to and/or considered by Donegal County Council in the course of its review and/or assessment and/or evaluation of documents referring to SSE’s tender, including but not limited to, all documents submitted by SSE (or its servants or agents) including its tender submission and in particular, its Pricing submission, and all communications between Donegal County Council and SSE (or its servants or agents) between the submission of the tender and the announcement of SSE as the preferred bidder, including any clarifications issued after tenders had been submitted.

All documents relating to the assessment by Donegal County Council of the pricing submissions of SSE, including documents which evidence when Donegal County Council evaluated and/or reviewed SSE’s tender”

25. [The] category of discovery being sought by Electric Skyline is broad enough to encompass SSE’s tender and so it will be allowed in the following form:

“All documents relating to the interpretation of the ITT, including, in particular, all documents relating to the interpretation of the ITT’s provisions concerning pricing submissions and Section 4.6 of the ITT and including any instructions to personnel of [Donegal County Council] or those who carried out the evaluation in so far as it relates to the SSE tender”

This is because any such discovered documents may assist Electric Skyline in advancing its case that Donegal County Council wrongfully failed to disqualify SSE’s tender.”

Two other categories were disallowed as being a fishing expedition.

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Region: Ireland

Discovery ordered, into confidentiality ring, of portion of successful tender re criterion where the applicant scored higher than the winner but no reasons were given and where the applicant maintained that the marks awarded to the winner were not justified

Hogan J

Re Quality Assurance Plan:

“26. Word Perfect’s claim under this heading is that no explanation at all has been offered by the OPG as to why ie obtained 170 marks under this heading. It maintains that it does not know why its rival obtained these marks and that it needs to have access to that part of the tender in order to make out its case that these marks may not have been justified.

27. I agree that in circumstances where no reasons at all have been given in respect of this heading – because, it seems, Word Perfect outscored its rival under this heading – the claimant cannot reasonably hope to make out its case on this front without access to the relevant portion of its rival’s In these particular circumstances, I consider that access to the relevant portion of the Translation tender dealing with quality assurance is indispensable if the Word Perfect is to have any prospect of making out this part of its case.

28. I would therefore allow the appeal in respect of this aspect of the case and, subject to certain confidentiality commitments which I will discuss later, would direct the Minister to make discovery of the relevant portion of the ie tender dealing with the quality assurance plan.”

Re Telephone Resourcing:

“33. I would propose that the order of the High Court be varied and this aspect of the motion should be adjourned to the trial of the substantive action. In essence it will be for the trial judge to determine afresh in the light of this judgment whether access to this part of the tender documentation is indeed indispensable in the manner I have already described.”

Confidentiality

“34. It remains only to address the issue of specific confidentiality requirements. I think that these requirements can be met in the first instance by stipulating that only named solicitors and counsel retained by Word Perfect will be permitted to have sight of the discovered material comprising that part of ie tender dealing with the quality assurance plan. Any further applications in that regard can be made to the High Court, but any such application must also be made by motion which is on notice not only to the Minister, but also to Translation.ie.”

View Case

Region: Ireland

Overturning discovery orders made by the High Court, the Court of Appeal emphasised that discovery had to be ordered by reference to the pleadings

The Court (Ryan P, Peart J, Mahon J)

Challenge to the award of a contract for the design and construction of university buildings. The main claim was that the winning bidder submitted part of its tender after the submissions deadline (for the substantive judgment, see BAM PPP PGGM Infrastructure Cooperative U.a. v National Treasury Management Agency [2016] IEHC 546, addressed under Clarifications and Late Tenders.

“29. It may be convenient to summarise these principles as they are applicable to this

1. The primary test is whether the documents are relevant to the issues between the parties. Once that is established it will follow in most cases that their discovery is necessary for the fair disposal of those issues.
2. Relevance is determined by reference to the pleadings. O. 31, r. 12 specifies discovery of documents relating to any matter in question in the case
3. There is nothing in the Peruvian Guano test which is intended to qualify the principle that documents sought on discovery must be relevant, directly or indirectly, to the matter in issue between the parties on the proceedings.
4. An application for discovery must show it is reasonable for the court to suppose that the documents contain relevant information.
5. An applicant is not entitled to discovery based on speculation.
6. In certain circumstances a too wide ranging order for discovery may be an obstacle to the fair disposal of proceedings rather than the converse.
7. As Fennelly pointed out in Ryanair plc v. Aer Rianta cpt [2003] 4 I.R. 264, the crucial question is whether discovery is necessary for “disposing fairly of the cause or matter.”
8. There must be some proportionality between the extent or volume of the documents to be discovered and the degree to which the documents are likely to advance the case of the applicant or damage the case of his or her opponent in addition to ensuring that no party is taken by surprise by the production of documents at trial.
9. Discovery could become oppressive and the court should not allow it to be used as a tactic in war between parties.”

30. Documents must be relevant to the legal action between the parties; it is not enough that they relate to the dispute that gave rise to the litigation – see Clarke in Mac Aodháin v Ireland & The Attorney General [2012] 1 I.R. 430 (at §14):

“… it seems clear that in judicial review proceedings it is important, when considering relevance, to identify how the document concerned can be relevant to the specific types of issues which will arise in the relevant judicial review application rather than being relevant to the substantive questions which were before the decision maker.”

31. There are not special rules for discovery in different kinds of legal action such as judicial review and public procurement cases. It is that the nature of the dispute makes it more or less appropriate for discovery to be ordered.”

View Case

Region: UK

Challenger should not have accepted that only its external solicitor, and none of its own employees, should be admitted to a confidentiality ring, with the misguided result that the solicitor was called as a witness of fact (the client not having seen information within the confidentiality ring.

Fraser J

Fraser J endorsed the general approach to confidentiality rings set out by Hamblen J in Libyan Investment Authority v Société Générale SA and others [2015] EWHC 550 (Comm) and said at [71] he would add the following as factors relevant to the Court’s discretion:

“(6) In procurement litigation, the confidential information of other parties (namely the other bidders) will usually be held by the contracting authority. Although it will not invariably be relevant to the claim by the dissatisfied bidder, it will often be relevant. No order for disclosure should be made in respect of such third party confidential information without giving that other third party the right to make representations to the court.

(7) As part of considering the balancing exercise necessary, there are a range of options or special measures available to the court which will both preserve the confidentiality of the information, and be consistent with the dissatisfied bidder’s rights and the administration of justice. These issues can usually be sensibly resolved by consent.

(8) However, if consent is not possible, the court will then rule on any opposed application in this respect, particularly in relation to the identity of personnel who need to see the confidential information and may wish to give evidence in respect of it. It is not a solution to an objection by a contracting authority (or another bidder) to assume that a party’s solicitor acting in the litigation should and can be called to give primary evidence of fact in that party’s favour.”

Fraser J went on at [81] to set out principles to be followed regarding confidentiality rings and adducing evidence:

“1. No solicitor should be called by its own client to give evidence if that is likely to give rise to a conflict of interest, or the appearance of a conflict of interest. This is enshrined in the Solicitors’ Code of Conduct in any event.

2. If the membership of a confidentiality ring is restricted such that a party’s own solicitor appears to be the only possible witness to give evidence of fact on matters concerning confidential information, then consideration must be given to increasing the membership of the confidentiality ring to include another person or persons to give evidence instead. If agreement cannot be reached with the other party/parties, then an application should be made to the court. The undesirability of a party’s own solicitor being called as a witness of primary fact on that party’s behalf will be a powerful factor which the court will take into account when considering that application.

3. In very rare circumstances it might be necessary to call a party’s own solicitor to give evidence at the trial. One example is at [78] above. If that is anticipated, this should be raised with the court as soon as this becomes apparent (even if before the commencement of the trial) so that the issue of alternative witnesses can adequately be considered.”

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Region: UK

Specific early disclosure ordered of evaluation materials and documents relating to a potential conflict of interest

ter Haar KC (sitting as a Deputy High Court Judge)

The following evaluation materials were ordered to be disclosed:

(1) All evaluation notes of the individual evaluators;

(2) All moderation notes of the individual moderator;

(3) All notes and/or minutes of all evaluators’ meetings, including moderation meetings; and

(4) All documents produced for the purposes of the training, guidance or instruction of the evaluators/moderators, to include any model answers that were drafted

As regards conflict of interest, the following category was ordered but only in respect of an identified person:

(5) All documents relating to any actual or potential conflict of interest and/or any steps taken to address any actual or potential conflict of interest.

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Region: UK

Early specific disclosure ordered of evaluation material and documents relating to alleged conflict of interest

Coulson J

Specific Categories

Categories sought by way of specific disclosure, as follows (Items 5, 4 and 2 ordered; documents in item 1 likely to be caught by item 4; item 6 not ordered – probably would be caught by standard disclosure):

“1. In relation to each and every error made by the Defendant in its evaluation of bids, documents (electronic or otherwise) which evidence (1) the date that the error was discovered; (2) the error; (3) its correction and the date of that correction; (4) its effect on the NPV of our client’s bid; and (5) the effect on the percentage difference between the NPV of our client’s bid and that of Abbott.

2. Documents relating to any independent verification/audit of the Defendant’s initial and all subsequent evaluations, particularly following the Defendant’s discovery of various errors in its evaluation.

4. All documents (electronic or otherwise) relating to the Defendant’s initial evaluation and any subsequent evaluations of the Claimant’s bid and that of Abbott, regardless of whether any re-evaluation was undertaken in relation to only one or both bidders.  These documents should be contemporaneous (rather than an extract or copy created specifically for the Claimant) and should demonstrate how the Defendant has calculated each bidder’s costs in accordance with all of the content in the ITT (including instruction 5 of Spreadsheet 1).  For the avoidance of doubt, this should include the Defendant’s treatment of Fixed Costs and its calculation of the same for year 6 and also the Defendant’s evaluation of additional assays.  Furthermore, the documents should show the impact on the calculation of NPV for each bid.

5. All documents containing any instructions and/or guidance provided to the Defendant’s internal team for evaluation of bids.

6. Any internal reports, minutes and notes of any meetings (whether handwritten or electronic) and any emails created and/or circulated in relation to the Defendant’s initial and any subsequent evaluations, and particularly relating to the Defendant’s reasoning for awarding the contract to Abbott.”

General Principles

Coulson J stated the following general principles as regards specific disclosure at [20]:

“(a) An unsuccessful tenderer who wishes to challenge the evaluation process is in a uniquely difficult position. He knows that he has lost, but the reasons for his failure are within the peculiar knowledge of the public authority. In general terms, therefore, and always subject to issues of proportionality and confidentiality, the challenger ought to be provided promptly with the essential information and documentation relating to the evaluation process actually carried out, so that an informed view can be taken of its fairness and legality.

(b) That this should be the general approach is confirmed by the short time limits imposed by the Regulations on those who wish to challenge the award of public contracts. The start of the relevant period is triggered by the knowledge which the claimant has (or should have) of the potential infringement. As Ramsey J said in Mears Ltd v Leeds City Council [2011] EWHC 40 (QB), “the requirement of knowledge is based on the principle that a tenderer should be in a position to make an informed view as to whether there has been an infringement for which it is appropriate to bring proceedings“.

(c) However, notwithstanding that general approach, the court must always consider applications for specific disclosure in procurement cases on their individual merits. In particular, a clear distinction may often be made between those cases where a prima facie case has been made out by the claimant (but further information or documentation is required), and those cases where the unsuccessful tenderer is aggrieved at the result but appears to have little or no grounds for disputing it.

(d) In addition, any request for specific disclosure must be tightly drawn and properly focused. The information/documentation likely to be the subject of a successful application for early specific disclosure in procurement cases is that which demonstrates how the evaluation was actually performed, and therefore why the claiming party lost. Other material, even if caught by the test of standard disclosure, is unlikely to be so fundamental that it should form the subject of a separate and early disclosure exercise.

(e) Ultimately, applications such as this must be decided by balancing, on the one hand, the claiming party’s lack of knowledge of what actually happened (and thus the importance of the prompt provision of all relevant information and documentation relating to that process) with, on the other, the need to guard against such an application being used simply as a fishing exercise, designed to shore up a weak claim, which will put the defendant to needless and unnecessary cost.”

View Case

Region: UK

Model answers, which could disclose the application of undisclosed criteria/sub-criteria, should be disclosed, but given their confidential nature, this should first occur into a confidentiality ring of named solicitors and counsel

Ramsey J

At [47]-[50]:

“The model answers like, it seems, the “aide memoire of expected content” in Morrisons v Norwich CC at [24], were documents provided to those evaluating the tenders to assist them with carrying out the scoring of the information provided by the tenderers. In assessing the tenders against the criteria there will necessarily be a discretion as to how those tenders are assessed. To the extent that the model answers do not contain any new criteria, sub-criteria or weightings but perform the task of seeking to ensure fair and consistent assessment of the tenders within stated criteria, sub-criteria and weightings, then I accept that LCC would be entitled to keep the model answers confidential from the tenderers.

If however the model answers do contain criteria, sub-criteria or weightings which should have been disclosed to tenderers under the Regulations then those matters should not only not be kept confidential but should have been provided to tenderers.

At present, for the purpose of this application I consider that I should treat the model answers as containing confidential matters. However, as I stated in Croft House Care Limited v Durham County Council [2010] EWHC 909 (TCC) at [38] the mere fact that they are confidential does not prevent them from being disclosed. As stated in Science Research Council v Nassé, the ultimate test is whether disclosure and inspection is necessary for disposing fairly of the proceedings and, in making the decision the court must consider whether any special measure, such as redaction or hearings in private should be adopted.

I have no doubt that disclosure of the model answers is necessary for disposing fairly of the proceedings and determining whether there were criteria, sub-criteria or weightings which were not disclosed. The model answers were evidently part of the guidance given by LCC to those evaluating the tenders. However, I consider that any confidentiality should be preserved at this stage. However, unlike the claimants in Croft v Durham CC, Mears is a large organisation where the mechanism of a confidentiality ring can be applied. In the first place therefore any inspection of disclosed documents should be limited to named solicitors in Trowers & Hamlin and named counsel. If they consider that there are grounds for contending that the model answers contain matters which should have been disclosed to tenderers then Mears should nominate a person, such as a director, manager or recently retired person, who would not have been involved in the Procurement, would not be involved in the Procurement and would not disclose any information to others in Mears including those who might have been or might in the future be involved in the Procurement. His or her role would be to give instructions to the lawyers. In addition, LCC should confirm that they have no reasonable objection to the person nominated by Mears for that purpose.”