The question of disclosure of documents in public procurement law raises many difficult and thorny issues. This section consider the question of disclosure in the context of Remedies.
Obtaining access to documentation is of fundamental importance to losing bidders, who often want to consider why they have lost and whether they have grounds to challenge an award decision. It is also an issue of basic transparency in the public procurement process. Disputes about disclosure have arisen in many challenges which reveal the obvious tension between, on the one hand, a desire on the part of unsuccessful tenderers for disclosure and, on the other, attempts by winning bidders and contracting authorities to limit the amount of information that is disclosed.
In the EU regime, precise rules as regards disclosure in the context of challenges are subject to national procedural law, which must of course comply with the principles of equivalence and effectiveness. There are many different approaches in the Member States to the disclosure of public procurement documentation, and of course one does need to consider the question of disclosure in the Remedies context in light of what disclosure obligations may otherwise apply (e.g. rules requiring automatic disclosure of information). The Court of Justice of the European Union has also addressed the issue of disclosure of documentation in the field of public procurement but it is not entirely clear what requirements EU law itself imposes as regards disclosure. Taking Ireland as an example, its approach to disclosure can be said to be conservative, grounded as it is in the discovery procedures of the High Court.
The UK jurisdictions have their own particular rules as regards disclosure of documentation in public procurement litigation. In England and Wales, there is, for example, the concept of early specific disclosure, whereby challengers can obtain documentation at the outset of the case. The Technology and Construction Court has also developed detailed guidance (2022) about the disclosure of documentation in public procurement cases. It appears that all of these rules and the practice built up in recent years will continue to apply in the regime under the UK Procurement Act 2023.
Below, our analysis of the leading cases and principles that emerge from them consider many different questions concerning disclosure in procurement, including:
- What are the minimum requirements of disclosure required by law?
- What is the right balance between right to review and protection of commercial information?
- At what stages of litigation will a court order disclosure?
- What is the relationship between disclosure and the extent of reasons given in regret letters?
- Who should be admitted to a confidentiality ring?
- Should clients be admitted to a confidentiality ring?
- What undertakings are members of a confidentiality ring required to give?