Applications for specific disclosure vs lifting of the automatic suspension – which comes first?

In a recent judgment in Alstom Transport UK Ltd v London Underground Ltd and another Mr Justice Coulson, the head of the TCC, considered the approach in public procurement disputes to the timing of applications for specific disclosure of documents relative to any application by the contracting authority to lift the automatic suspension.

Having reviewed the previous case law, Mr Justice Coulson determined that there is no general rule that an application to lift the automatic suspension should be heard in advance of any application for specific disclosure. Each case is to be considered on its particular facts.

The particular facts which the court will take into account when considering the need for specific disclosure in advance of the application to lift the automatic suspension include:

The nature and scope of the documents requested;
The approach of the parties to the disclosure of documents to date; and
Whether the documents are relevant to the issues to be considered in the application to lift the automatic suspension which, in most circumstances, means documents which focus on whether there is a serious issue to be tried (as is required as the first limb of the test for an unsuccessful tenderer to maintain the automatic suspension).

A key consideration referred to by Mr Justice Coulson is the need to avoid circumstances in which a contracting authority seeks to gain a potentially unfair advantage by refusing to provide disclosure of documentation to the unsuccessful bidder but subsequently seeks to pick and choose which documents it will disclose for the purposes of its application to lift the automatic suspension, particularly when seeking to argue that there is no serious issue to be tried.

On the facts of this particular case, Mr Justice Coulson determined that it was appropriate for the application for specific disclosure to be heard in advance of the application to lift the automatic suspension, and that the short delay caused by doing so did not cause the contracting authority any prejudice (in the context of a lengthy procurement process).