Time limit for procurement challenges

Last week the European Court of Justice gave judgment in the Uniplex case.

As many of you will be aware Regulation 47 of the Public Contracts Regulations 2006 provides that challengers must bring a claim for damages promptly and in any event within three months of the date on which the grounds for the claim first arose. Until this judgment it has been unclear how the requirement to begin a claim promptly fits together with that three month period. There have also been questions about the date on which grounds for the claim first arose - does this mean the date of the breach itself for example or alternatively does it refer to the date that the challenger became aware of the breach?

The judgment is helpful in two ways. It confirms that:

1) the period for bringing proceedings should start to run from the date on which the claimant knew or ought to have known of the alleged breach.

2) the wording in Regulation 47 which allows a court to dismiss an action brought within 3 months on the grounds that it is not brought promptly breaches the principles of certainty and effectiveness and is not compatible with the Remedies Directive. Challengers are entitled to the full three months in which to bring their claim.
This is of course in relation to a straightforward damages claim; claims for ineffectiveness have different limitation periods and must be brought within 30 days of the date the contract was awarded or within six months where the contracting authority does not notify bidders of the award or advertise it.

Alongside the recent changes brought in by the Remedies Directive this case is likely to give further encouragement to suppliers wishing to bring a claim in the courts.

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