Turning Point Ltd v Norfolk County Council  EWHC 2121 (TCC)
In December 2011 the Council invited Turning Point and others to tender, sending them the ITT which included a condition that the Council: “will accept no caveats to proposals or variant bids….”
Turning Point raised a number of questions on the ITT. The Council responded in January 2012. Despite this, Turning Point still considered that the information provided was inadequate or incomplete. Nevertheless, Turning Point submitted a tender, which included a Note on their pricing schedule stating that:
“…due to the lack of full and complete TUPE information, it is assumed that the restructure of staffi ng will be achieved through natural wastage and therefore we have assumed no redundancy costs. If redundancies were to occur, we would wish to enter into further discussions.”
On 12 March 2012, the Council informed Turning Point that they had not been successful as their tender contained a qualifi cation. Turning Point complained and on 28 March 2012 issued proceedings claiming that the information provided at the tendering stage was wholly inadequate and incomplete. The Council denied any breach of the 2006 Regulations and asserted that the proceedings were brought too late as they were not within 30 days of when Turning Point either did or should have become aware of the inadequacies (if any) in the tender information – as required by Regulation 47D. Mr Justice Akenhead held that the allegations relating to breaches of the 2006 Regulations were time-barred. He considered that Turning Point must have known of the inadequacies (if any) of the information by no later than 9 February 2012 when they submitted their tender to the Council. Turning Point had not issued their claim until 28 March 2012. Whilst the Court may extend the 30-day time limit, the Judge did not consider that there was any good reason to do so. He stated that:
“a good reason will usually be something which was beyond the control of the given Claimant; it could include signifi cant illness or detention of relevant members of the tendering team.”
With regard to the Note, Mr Justice Akenhead held that this was a clear qualifi cation or at the very least a caveat; it was either an actual or prospective contractual document as, if accepted, it would have been incorporated into the subsequent contract. Had the Council accepted it, they would have been responsible for redundancy costs. The Judge did not consider that the Council should have sought clarifi cation from Turning Point before rejecting their tender as the ITT had made it clear that there were to be no qualifi cations or caveats – a requirement which he considered was perfectly fair, reasonable and common. Furthermore, there was no express entitlement within the ITT for the Council to go back to tenderers on the pricing schedule for clarifi cation – nor did he consider there to be an implied obligation for the Council to do so. This case provides another strict reminder to those seeking to make a claim that they must do so within the prescribed 30-day period and the Court is only likely to extend this time for a “good reason” – this being usually something which was beyond the control of the claimant.