The case of Marston Holdings Ltd v Ministry of Justice (HM Courts and Tribunals Service) [2018] EWHC 3168 (TCC) provides clarification on two areas of public procurement law. First, a prima facie case is all that is required for disclosure of a tenderer’s tender. Second, it is acceptable, and may be necessary, to have several confidentiality rings operating at the same time.

The case, involving the Ministry of Justice’s decision to award a £290 million contract for the supply of approved enforcement agency services, was challenged by Marston. Our client, Jacobs, was an interested party, along with Excel Civil Enforcement Limited (“Excel”), represented by LG Williams & Pritchard.  

On our advice, Jacobs had agreed to its entire tender being disclosed into a lawyers-only confidentiality ring, as well as a redacted version into a client confidentiality ring. This was subject to stringent terms being agreed for the confidentiality rings, as well as formal undertakings being provided by their members. Excel, however, objected to its tenders being disclosed into any of the confidentiality rings. Marston therefore applied to court for an order for disclosure. Its application was heard on 6 November 2018 before Mrs Justice O’Farrell.

Mrs Justice O’Farrell reminded the parties that “The court has very wide disclosure powers and will take account of issues of confidentiality, but the mere fact that documents might be confidential is not of itself an automatic defence”. She also adopted Fraser J’s guidance in the case of SRCL Ltd v The National Health Service Commissioning Board (NHS) [2018] EWHC 1985 (TCC).

On the question of “whether the full tender document is required to be disclosed in order to ensure a fair disposal of this matter”, Mrs Justice O’Farrell was “satisfied that such disclosure is necessary and proportionate in this case”. In her view, Marston had “made out a prima facie case for challenge” having “identified a number of very specific mistakes or errors that it claims have been made in relation to the evaluation process, both of its bid and of the other bids” and established “by reference to the defence that there were discrepancies and inconsistencies identified in not only the claimant’s bid but also the bids of Jacobs and Excel, the interested parties”.

Mrs Justice O’Farrell was also content that the confidentiality rings were “adequate to ensure that the confidential information is not misused and is used solely for the purpose of resolving the issues in the case”. She noted the existence of a client confidentiality ring, originally proposed by this firm on behalf of Jacobs, for which formal undertakings had been given and stringent requirements were in place for how documents were dealt with. This included the requirement to view documents at solicitors’ offices only, as well as not to remove or copy documents.  The sole member of the client confidentiality ring, Mr Wallace, was also prevented from being involved in any future procurement for the relevant services for a period of twelve months after determination of the proceedings. In her judgment, Mrs Justice O’Farrell considered that the terms of the client confidentiality ring would “provide adequate protection in relation to the confidential information of the interested parties”.

Excel was ordered to disclose its entire bid in to the lawyers-only ring and a redacted version into the client confidentiality ring. It was also ordered to pay Marston’s costs of the application.