A recent Court of Appeal case, Sita UK Ltd v Greater Manchester Waste Disposal Authority has confirmed that when deciding whether an unsuccessful tenderer had sufficient knowledge to bring a claim for infringement of the public procurement rules the applicable standard was knowledge of facts which apparently clearly indicated, though they did not absolutely prove, an infringement.
The appellant in the case appealed against a decision that its claim for breaches of public procurement law was out of time. The judge at first instance held that the claim was out of time and there was no good reason to extend time when the appellant had failed to bring its claim within the three month period running from the date it knew or ought to have known that it had a claim for infringement of the public procurement rules.
The appellant appealed on the basis that:
- the court should have disapplied the whole regulation and applied a different limitation period, namely that applicable to claims for breach of statutory duty;
- it did not have enough knowledge to pursue its claim until a date less than three months before the issue of proceedings;
- the judge, in refusing to extend time, had failed properly to exercise his discretion and had not given proper weight to the fact that the respondent had failed to comply with its duties of disclosure and transparency.
The Court of Appeal held that the judge’s decision to apply the three month period from the date of actual or constructive knowledge was wholly in line with European Union law principles and did not contravene the principle of certainty because there was a duty, and not merely a discretion, to apply that period in all cases. The standard of knowledge adopted by the judge was “knowledge of facts which apparently clearly indicate, though they need not absolutely prove, an infringement” and the Court of Appeal held this was the correct test.
