Under the public contracts regulations, proceedings must be started within 30 days of the date when the economic operator or tenderer first knew or ought to have known that grounds for starting them had arisen. Whilst most procurement cases involve challenges made after the decision to award the contract is made and so after the tenderer has been informed of the reasons why its bid has not been selected, sometimes claims must be brought whilst the tender procedure is ongoing.
Horner J said that in the circumstances, ROL acted prudently to protect its position in bringing the challenge while the tendering process was ongoing. He also considered that in looking at the constructive knowledge that ROL should have possessed, a court must approach the subject on the basis of the knowledge of a “reasonably well-informed and normally diligent tenderer”. The issue here was that it was said that the ITN (or intention to negotiate) process was flawed in that tenderers (and especially those who were not incumbents) could not price their tenders accurately.
The ITN documents were sent out on 30 May 2014; the claim form was issued on 4 July 2014. The Judge thought that it would have been reasonable to study the documents over the weekend. He also, noting in particular the difficulty both parties had had explaining why the ITN was either flawed or not defective, had no hesitation in concluding that it was reasonable for ROL to bring in outside expert assistance to help it in understanding how the tender should work and with its completion. The Judge thought it reasonable to give the expert accountants until 4 June to consider all the tender documents and to organise a meeting. He thought it reasonable to give the accountants two days to consider the ITN and inform ROL of their conclusions. They actually did so on 9 June 2014.
On balance, therefore, the Judge thought that the well-informed and diligent tenderer would have acquired the necessary knowledge from its accountants which would have allowed it to conclude that there was clear indication of an infringement between 4 and 6 June. The Claim was accordingly just issued in time.