The recent case of Bombardier Transport Ltd v Merseytravel along with the new Procurement Policy Guidance Note issued by the Technology and Construction Court (TCC) have placed greater onus on contracting authorities to proactively disclose information in public procurement cases that may previously have been withheld on the grounds of commercial confidentiality.
In December 2016, an award of a contract for the design and modernisation of rolling stock, modernisation of maintenance depots and provision of maintenance services was challenged by Bombardier Transportation Limited (Bombardier). Its claim was one for damages. During the proceedings, the court was contacted by lawyers representing another unsuccessful bidder in the procurement process. The lawyers asked for the production of all documentation in the court file, but their request was denied because the files were marked "private". The lawyers argued that this was wrong in principle. Bombardier then sought an order to prohibit the particulars of the claim and the confidential annexes of the tender documents being released to non-parties.
During the proceedings, it was brought to the attention of Coulson J that all public procurement claims were marked as "private", and that access to the court file in such cases was being routinely denied. Like the lawyers for the other unsuccessful bidder, Coulson J also considered that this could not be right as a matter of principle and dismissed Bombardier's request for confidentiality in this instance.
The decision regarding confidentiality in Bombardier Transport Ltd v Merseytravel provides the rationale for significant change in respect of what was once considered "private" or commercially sensitive information. The new position is now endorsed by the TCC's Guidance Note. The courts should begin with the assumption that the documents submitted to the court in public procurement claims are not confidential and therefore publicly available. This is very different to the court's initial position on confidentiality in public procurement cases, where all information in court files was to be treated as confidential. This change in starting point demonstrates an eagerness by the TCC to preserve the principle of open justice. The burden now rests with the parties to clearly mark any specific information which they consider should be treated as confidential.
In the procurement of public transport services, many tenderers find that they compete against one another on a regular basis. Accordingly, information within a tender that may appear to have no commercial consequences in the court's eyes may be meaningful to a competitor. This approach may be particularly taxing for successful tenderers, who may find their tenders the subject of detailed analysis purely because their tender documents are made publicly available by default. However, the judgment in the Bombardier case makes it clear that the successful tenderer should be given the opportunity to make submissions before its tender is opened up to the world, thus retaining, to a certain extent, the original assumption of confidentiality for third parties.
When deciding whether or not Bombardier's particulars of claim could be withheld from non-parties, Coulson J came to the conclusion that they were not confidential information. His reasoning was that, despite counsel for Bombardier submitting that the particulars of claim contained procurement documentation, classifying it as confidential would be an overly-cautious approach to confidentiality and not in the best interests of preserving open justice.
The balance between confidentiality and open justice is probably an art rather than a science and while it was acknowledged by Coulson J that it is appropriate for certain parts of a procurement trial to be held in private, the judgment in Bombardier recommends that such trials are held in public unless there is good reason not to do so. For the hypercritical, Coulson J's judgment, along with the recent TCC Guidance Note bring about uncertainty when considering confidentiality. There is no longer an automatic protection. Rather, the decision over when information is truly confidential is left in the hands of the courts which may not be fully aware of the potential advantages that disclosure of certain sensitive data will provide to a party's competitors.