Time limit changes for procurement challenges

From 1 October 2011 new Regulations (the Public Procurement (Miscellaneous Amendments) Regulations 2011) will implement the judgment in the Uniplex case into UK law.

In Uniplex the European Court of Justice considered Regulation 47(7) of the Public Contract Regulations and in particular the requirement to bring proceedings for infringement promptly and in any event within 3 months from the date when grounds for the bringing of proceedings first arose unless the Court considers there is a good reason for extending the period. This was very much in line with practice in English courts in particular in judicial review cases.

In Uniplex the ECJ held that in order to guarantee the effectiveness of the remedy provided by the EU Remedies Directive:

  • The limitation period for bringing proceedings to establish an infringement or to obtain damages should not start to run until the date on which the potential Claimant knew or ought to have known of the alleged breach of the procurement rules; and
  • That the requirement to bring proceedings promptly which left the court with a discretion to dismiss an application before the 3 month time limit for bringing a claim had not yet expired was inconsistent with EU law as it was not precise and made the limitation rules uncertain.

Judgment in Uniplex was handed down in January 2010. In November the Cabinet Office began consulting on the necessary amendments to the Regulations in order to implement it. The conclusion of the consultation was to amend the Regulations so that the time limit for bringing legal proceedings should be 30 days starting from the date of knowledge of the matters which might give rise to a claim but preserving a discretion for the court to extend the period to an absolute maximum of 3 months from the date of knowledge.

Ahead of the formal implementation of Uniplex the courts have ignored the word 'promptly' in Regulation 47(7) thus largely implementing the judgment of the ECJ by default. As a result the principal battleground has been over the date of knowledge. The Cabinet Office have chosen not to define this any further than the date on which the potential Claimant first knew or ought to have known that grounds for starting proceedings had arisen. The leading case on this is Sita UK Limited v Greater Manchester Waste Disposal Authority which held that the time period begins to run when the potential Claimant has knowledge of the basic facts which apparently clearly indicate (although do not necessarily prove) an infringement of the Regulations.

As a result of implementing Uniplex there are some further consequential amendments dealt with in the new Regulations. These include:

  • A provision that for the purposes of the automatic suspension provisions under Regulation 47G6 the claim need only be issued and not served on the contracting authority;
  • The issued claim must however be served within 7 days of issue; and
  • If the contracting authority is in any event aware that proceedings have been issued then the automatic suspension will still apply.

There is also a modification of the requirements for sending standstill notices. It will no longer be necessary to send a standstill notice to all tenderers who submitted an offer. There will be no requirement to send the notice to those economic operators whose tenders have been 'definitively excluded'. A tender has been 'definitively excluded' where that exclusion has either been held to be lawful in proceedings or where the time limits for bringing a claim have already expired.

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