Headline Summary

In the recent decision Access for Living v London Borough of Lewisham [2021] EWHC 3498 (TCC), the court confirmed that limitation periods will be enforced strictly in procurement cases and provided a stark warning to make sure that parties fully understand what time limits they are agreeing to extend.

Factual Background

London Borough of Lewisham (LBL) undertook a mini competition for contracts providing learning supported living services. Access for Living (AFL) took part in the competition but was informed on 7 February 2020 that it was unsuccessful in its bid.

Following the decision notice, a ten-day automatic standstill period applied in accordance with regulation 86 of the Public Contracts Regulations 2015 (PCR), preventing LBL from entering into new contracts during this time. LBL subsequently agreed to extend the standstill period to 13 March 2020.

AFL issued proceedings on 11 March 2020. While this was within the agreed extended standstill period – the date of issue was 32 days from the date of the decision notice, and so outside the 30-day limitation period to bring a claim imposed by regulation 92 PCR.

Key Legal Points

The High Court refused the application by AFL for an extension of time to issue proceedings and struck out the claim by AFL against LBL. The judge reiterated previous case law on the subject of the strict time limits to bring procurement challenges and confirmed:

  • the fact that the delay was short was not a "good reason" to extend time for limitation purposes;
  • the fact that AFL's solicitors made an error in conflating the extension of a stay on the standstill period with a stay of the statutory limitation period, was also not sufficiently "good reason" to extend time; and
  • AFL's status as a charity with a strict decision-making structure to follow in order to issue proceedings was not sufficient to impact on the court's decision.

Commentary

  • This case provides a useful reiteration of the Courts' approach to how standstill periods and limitation periods work in the context of the PCR. The case reinforces the fact that the Courts will take a very strict approach to what would be considered a "good reason" for extending time limits.
  • The case also gives a reminder to practitioners to keep an eye on both the standstill period AND any limitation periods - and to be clear as to what an agreed extension applies to – standstill, limitation or both.
  • Any unsuccessful bidders concerned about the outcome of a tender should take legal advice as soon as possible after notification of award – as the standstill period and limitation period are very short - and can soon pass by, leaving a bidder without a satisfactory remedy to any complaint about a tender process.