Are you still getting to grips with the new standstill rules? Are you yet to master the complexities of the new regime which can operate to nullify signed contracts?
Just when we might be forgiven for thinking the upheavals in procurement law have passed, the rules have changed again - this time, with effect from 1 October 2011.
Thankfully, the latest changes do not amount to a wholesale re-write of huge chunks of the legislation, as they did at the end of 2009. But they do bring about one particularly important change - a change which bidders, just as much as procuring authorities, need to know about.
The big change
Originally, the Public Contracts Regulations 2006 - the rules implementing EU public procurement law throughout the UK except in Scotland - stated that any legal proceedings against a procuring authority for a breach of the duty owed by the authority under the regulations had to be brought "promptly, and in any event within three months from the date when grounds for the bringing of the proceedings first arose". The court had discretion to extend the three months where there was good reason to do so.
Then, in early 2010, the European Court's judgment in the Uniplex case made it clear that this position was inconsistent with the established principles of effectiveness and legal certainty. This was because, if there was a requirement for an aggrieved candidate to act "promptly", circumstances could arise where the candidate's claim could be too late. Even where a claim is brought within the three-month period, a court may take the view it had not been brought "promptly". At the time of launching their claim, candidates would have no way of knowing whether this was going to be the outcome.
Following Uniplex, the promptness requirement was disregarded, without the regulations themselves being amended. This meant that candidates wishing to challenge award decisions had a straight three months in which to do so. While this brought the UK (except Scotland) in line with Uniplex on a stopgap basis, the intention was to formalise the position. This has now happened under the changes that came into effect on 1 October 2011.
The amended regulations now make it a requirement that:
- Any proceedings under the regulations have to be brought within 30 days of the date on which the claimant knew, or ought to have known, that grounds for bringing the claim had arisen. This is clearly much less time than the three months previously allowed.
- If the 30-day period ends on a non-working day, it will automatically be extended to the end of the next working day.
- The court has discretion to extend the 30-day period where there is good reason to do so, but only up to a maximum of three months from the date the claimant knew, or ought to have known, that grounds had arisen.
Importantly, this change does not apply where the date of knowledge, or the date when the claimant ought to have known that grounds had arisen, precedes 1 October 2011. Therefore, if you are a claimant who first detected grounds for a challenge in the first week of last month, don't worry - you haven't got a matter of hours in which to react and need not panic! In those cases, the stopgap position still applies - so you have the full three months from the date you first found out. And the courts still have discretion to extend the three months where there is good reason.
A sensible change?
For sure. Firstly, Uniplex did not make it a requirement that candidates have three months, come what may, to mount a formal challenge. It merely made it clear that potential claimants need to have certainty over the position - the 1 October changes give that certainty.
But just as importantly, the change provides a different kind of certainty for procuring authorities: that is, the assurance that any formal challenge will, indeed, be brought promptly. The original requirement for promptness was, in essence, a good thing: it prevented authorities from having threats of challenges looming over their procurements, with the potential to affect decision-making and to slow the process.
Other aspects of the changes
The latest changes do include some related aspects - largely around process - which bring the claims procedure more in line with traditional judicial review in terms of how formal proceedings are begun. For claims brought prior to contract award and which give rise to the new-style automatic suspension, there are minor changes which dictate the actual point suspension becomes effective. The position now is basically that the award process is suspended when the claim form is issued.
Pre-qualification questionnaire exclusion criteria
The other main change introduced is one which updates the "mandatory exclusion criteria". As a result candidates who fail any of these criteria are required to be excluded at pre-qualification stage. With the Bribery Act 2010 comes the addition of a new criterion - the offence of bribery contrary to section 1 (general offence) or 6 (bribery of foreign public officials) of the 2010 Act.
The offences contrary to section 2 (offences relating to being bribed) or 7 (failure of commercial organisations to prevent bribery) of the 2010 Act may, if authorities choose, be used as grounds for discretionary exclusion, rather than mandatory exclusion.
When compiling a pre-qualification questionnaire, it is fairly standard practice for authorities to reproduce the text of Regulation 23 somewhere in the body of the document, for ease of reference. Regulation 23(1)(c) reads "the offence of bribery". Immediately after that, the following is now added:
"(ca) bribery within the meaning of section 1 or 6 of the Bribery Act 2010"
It is noted that the original Regulation 23(1)(c) is still present.
What does this mean? See our action points for some of the next steps to consider.