Supreme Court Rules On Discovery In Public Procurement Cases – Government, Public Sector

In September the Supreme Court considered discovery applications
in the context of procurement litigation in the case of
Word Perfect Translation Services Limited v Minister for Public
Expenditure and Reform.

Discovery in judicial review proceedings is not typical. It is,
however, a feature of procurement cases (which are a form of
judicial review). In procurement cases, applicants are in a
position of information deficit; they often have little information
to go on prior to issuing proceedings. Accessing discovery
materials relating to the contracting authority’s
decision-making process and rival tenderers’ bids therefore can
provide detailed and necessary insights into the procurement
processes undertaken by awarding authorities and, on occasion,
unearth additional grounds of challenge to the applicant.

The issue is to ensure that the right to discovery is balanced
with the rival tenderers’ interests in protecting their
commercially sensitive information. Some practical takeaways from
the judgment are:

• General principles:
  it is necessary for the requesting party to show, by reference
  to the pleadings, that documents sought are
  relevant and necessary. Main
  principles are set out at para. 29 of BAM PPP PGGM Infrastructure Cooperatie UA v NTMA
  and Minister for Education and Skills, with the most recent
  general statement of law set out in Tobin v Minister for Defence.




• Defending an
  application: however, it is open to the requested party to
  argue that there is some countervailing factor
  that should lead the Court to conclude that disclosure of
  particular material is not necessary. For example, the material
  might contain confidential information (in
  particular, information that is confidential to a third
  party).




• Confidentiality: the
  fact that documentation may contain confidential information does
  not, of itself, provide a reason for preventing its disclosure but
  it is a factor that the Court can take into
  account in determining either to decline disclosure or to
  put in place measures to protect the confidential information
  (unless its disclosure should become absolutely essential).




• Proportionality:
  there is a balance to be struck between the extent to which
  ordering discovery of a particular category of documents may give
  rise to the disclosure of confidential information
  and the extent to which the information may be important to
  a just and fair resolution of the proceedings. It
  is open to a requested party to argue that the discovery of
  particular documents may be disproportionate to
  their likely utility to the fair resolution of the
  proceedings.

Possible mechanisms for balancing the rights of the
parties

• Confidentiality
  rings: 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 (and, for example, technical experts, where relevant).
  Irish courts have used confidentiality rings but the Court
  understood that they had not yet been implemented in Ireland in the
  context of public procurement (though they had in England and
  Wales).




• An iterated
  approach: documents containing the confidential
  information in question is made securely available at the trial but
  not disclosed unless the trial judge comes to the conclusion that
  disclosure is truly required in the interests of justice. The
  underlying logic is that, as the case develops at trial, it may be
  much easier for the trial judge to reach a detailed and considered
  view as to whether some or all of the documents in question are
  truly important to the just and fair resolution of the proceedings.
  The Court referred to this as an “iterated
  approach”.

What about discovery in procurement proceedings?

There is no special rule for discovery in procurement
proceedings. However, application of the general rules may
be somewhat different in procurement
proceedings compared to other proceedings that do not
involve the same level of confidential information. Issues about
the disclosure of confidential information are likely to loom more
largely, but that is only because of the nature of the
case rather than the need to have different
rules.

Interestingly, the Court noted that the extent to which adequate
reasons for the result of the procurement process have been given
may be relevant. The judgment states that “it may breach
the requirement that there be an effective remedy if a party
obtains very limited information about why the result went 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“. In this
case, the Court directed discovery in respect of those areas where
no reason for the awarding authority’s decision was given
(albeit without revealing sensitive commercial data submitted by
competing parties).

The need of a challenger to obtain information for the purposes
of substantiating its claim will not necessarily trump the need to
protect competitors’ confidential information; 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.

Practical solutions

In its conclusions, the Court considered a practical way
forward:

• The Court suggested that the approach
  in appropriate procurement proceedings should be to direct
  immediate discovery of documents that are relevant and which either
  do not involve confidentiality or, where it is clear that the
  disclosure of confidential information will be required, it is left
  to the trial judge to determine whether further disclosure may be
  necessary.




• Where an “iterated process”
  is required to achieve a balance between the competing interests of
  effectiveness and confidentiality, a speedy resolution would not be
  achieved by a series of separate interlocutory applications for
  discovery. Any second round of additional discovery should
  therefore be left to the judge conducting the full hearing.




• All documents in respect of which it
  is appropriate to adopt an iterated approach should be the subject
  of an affidavit sworn contemporaneously with the main affidavit of
  discovery. That additional affidavit should not be handed over at
  that time; instead, it should be available in court (together with
  the documents referred to in it) so that there can be immediate
  disclosure of any materials which the trial judge directs. (This
  should include unredacted copies of any documents in respect of
  which a redacted copy is made available at this stage.)

Providing as it does both a detailed consideration of how
general discovery principles apply to procurement proceedings,
along with practical solutions on how to expeditiously manage the
challenges involved, this judgment provides useful guidance to
practitioners. It also is a reminder of the importance of striking
the correct balance in providing reasons to tenderers who have been
unsuccessful in a procurement process.

This article contains a general summary of developments and
is not a complete or definitive statement of the law. Specific
legal advice should be obtained where appropriate.