October 6th, 2017 by James Goudie KC

The Judgment of Coulson J in Cemex v Network Rail [2017] EWHC 2392 (TCC) is of interest on a number of aspects of procurement challenges.  On applications for an extension of time to serve the Particulars of Claim the Judge said:-

“14     It is, of course, right that the fact that an application to extend time is made before the expiry of the relevant time limit is a highly material consideration when the court decides what to do if the extension application is unsuccessful. However, that cannot be a complete answer in every case, otherwise the extension regime could be abused by those seeking more time, whether justified or not.

15       It should be noted that, in the context of procurement challenges, everything has to be done in accordance with a very tight timetable from first to last. …

… An application for an extension of time to serve the particulars of claim … must therefore been seen in the context of the required tight timetable in cases of this sort.

  1. Perhaps for this reason, applications to extend time for the service of the particulars of claim in a procurement dispute are rare. In my view, given the other time constraints, it is certainly not the sort of application that this court should encourage. In addition, the new vigour with which relief from sanctions is now enforced should also serve to discourage such applications. …”

On abnormally low tenders, the Judge said:-

“20        … A party seeking to challenge the award to another tenderer only ever has the information given in the debriefing material by the contracting authority or the utility, whatever the grounds of challenge. If the information indicates that the successful tender was or may have been abnormally low then a claim can be pleaded on that basis, just as when the information indicates that, for example, there has been a manifest scoring error, a claim can be pleaded on that basis. There is, in my judgment, no real difference between them. …”

“22.       … In my view, it is wrong to suggest that a challenger in these circumstances can simply assert that a successful tender was “abnormally low”, and then sit back expecting to be given all the tools to undertake a comprehensive review of the technical detail of that tender and then, in its own time, reach a view as to whether the successful tenderer’s technical solution was “viable on a long-term basis.” That is the job of the contracting authority/utility before the award, not the business of the unsuccessful tenderer after the tender process has been completed.

  1. It must be remembered at all times that in a procurement challenge, the issue is limited to whether the contracting authority has made a manifest error of some sort in evaluating the successful tender or the unsuccessful tender. Whether or not a tender is abnormally low is simply a species of manifest error. It involves a very limited review by the court … It is not a rerun of the entire tender process to see if something might have been done differently.”

On specific disclosure, the Judge said (paragraph 41) that there is nothing in the decision of the Supreme Court in Nuclear Decommissioning Authority v Energy Solutions (2017) UKSC 34 which bears on the proper approach to an early application for specific disclosure.

On confidentiality rings, the Judge said:-

“45    … I consider that issues as to the precise make-up of confidentiality rings are self-evidently not proper matters for the court and classically matters for the parties to sort out and agree. In the present case, I can see no difficulties whatsoever in the confidentiality ring being restricted to lawyers, at least at this initial stage. It is only if there is some element of the material which the lawyers cannot follow or understand that will lead to the parties needing to consider a modification to the make-up of the ring.”

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