Disclosure of documents in procurement disputes

One of the most common queries Mills & Reeve receives from disappointed bidders is: ‘How can I get hold of the documents? I need to know whether it is worth bringing a claim.’ This is a perennial problem for those wishing to challenge an award, particularly if they are to meet the time limits for challenges set out in The Public Contracts Regulations 2006.

While a request under the Freedom of Information Act 2000 can unlock some information, the statutory scheme gives contracting authorities enough time to legitimately drag their feet until the time limits for issuing proceedings under the regulations has passed.

In a recent case before the High Court, Roche Diagnostics Ltd v The Mid Yorkshire Hospitals NHS Trust (2013), the judge ruled that an aggrieved bidder could obtain early disclosure of specific documents that might enable it to take an informed view of the evaluation process and for pre-action disclosure of documents relating to the letting of an interim contract…

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