Uniplex (UK) v The NHS Business Services Authority, 2010
On 1 October 2011, the latest amendments to the Public Procurement Regulations 2006 relating to time periods for proceedings under the Regulations, necessitated by the ECJ ruling in the Uniplex case, became law. As of 1 October 2011, under the Public Procurement (Miscellaneous Amendments) Regulations 2011 (SI2011/2053), proceedings must be brought within 30 days from the time the claimant knew or ought to have known of the alleged violation of the Regulations. Other minor modifications to the Regulations are incorporated in the amendments, but the changes to the general time limits flowing from Uniplex is the key amendment.
As an aside, it is worth noting that the Cabinet Office acknowledged in its summary of the submissions received (following its consultation on the possible amendments of the Regulations after Uniplex), the significant attention it paid to the submission by the PLA (Procurement Lawyers Association) Working Group.
So what was Uniplex about?
The case involved a request for a ruling from the ECJ by the English High Court. The proceedings, brought to the High Court, concerned a procedure run by NHS Business Services for the award of a framework agreement for the supply of haemostats. Uniplex tendered, but were not successful. Uniplex duly brought proceedings alleging violations of the Public Contracts Regulations 2006, in relation to award criteria for choosing which suppliers should go on the framework.
The High Court then referred to the ECJ questions concerning the EU rules on time limits. The ECJ ruled that:
- a requirement for proceedings to be brought “promptly” is not allowed under EU law as it is too uncertain; and
- a time limit for commencing proceedings cannot begin to run until the economic operator/supplier knew or ought to have known of the infringement or breach in question.
Furthermore, the ECJ stated, if it is not possible to interpret national rules to ensure the time does not begin to run until the supplier knew, or ought to have known of the violation, the national court must refrain from applying the unlawful time limit – which was, in the UK’s case, worded: “promptly, and in any event within three months”. This original wording of the Public Contracts Regulations 2006 was therefore, incompatible with EU Law.
Thus, the Uniplex ECJ ruling has led to the amendment of the 2006 Regulations effecting a 30-day time limit from the time the economic operator/supplier knew, or ought to have known of the alleged breach - unless the court considers that there is good reason for extending the period, in which case the court may extend that period up to a maximum of three months