From 1 October 2011 new Regulations will implement the decision of the European Court of Justice in Uniplex. Ahead of these coming into force it seems a good time to remind both economic operators and contracting authorities of the position on the time limits for bringing a claim for breach of the Public Contract Regulations and what they should do, or expect, if there may be grounds for bringing a claim.
First, a quick reminder. Prior to the judgment in Uniplex the UK had chosen to follow existing practice in English judicial review cases by requiring potential claimants to issue claims “promptly” and in any event within three months from the date when grounds for bringing proceedings first arose. This led to a claim potentially being excluded because although issued within three months the court did not consider that it had been issued promptly.
In Uniplex, the ECJ considered this and held that the requirement to bring proceedings “promptly” was inconsistent with EU law and that in order to guarantee the effectiveness of the remedy the limitation period for bringing proceedings to establish an infringement of the procurement rules, or for damages, should not start to run until the date on which the economic operator knew, or ought to have known, of the alleged breach.
Since Uniplex the courts have been implementing the judgment de facto by ignoring the word promptly but after a period of consultation the Cabinet Office is set to formalise the position in amending Regulations coming into effect on 1 October 2011.
Under those, the time limit for bringing a claim under the Public Contract Regulations will be 30 days from the date of knowledge with the court retaining a discretion to extend the period for a maximum of three months from the date of knowledge.
Inevitably, the courts have already been grappling with what amounts to “the date of knowledge”. In the Regulations the Government has resisted the temptation to tighten the definition of the date of knowledge and have stuck with the Uniplex definition of the date on which the economic operator “first knew or ought to have known” that grounds for starting the proceedings had arisen.
In Sita UK Limited v Greater Manchester Waste Disposal Authority the English court considered what this meant. The test used in Sita was that the time period for bringing proceedings starts to run when the claimant has knowledge of the basic facts which apparently clearly indicate (although do not necessarily prove) an infringement of the procurement rules.
In effect, this means that a potential claimant must still act promptly if it believes it may have grounds for a claim and should not, for example, delay bringing a claim in order to collect more evidence of the possible breach.
As a result of the time limit changes there is also a small consequential amendment to ensure that Regulation 47G6 (which prevents a contracting authority from entering into a contract) is effective from the time the claim is issued and not when it is served although the claim must be served within seven days. The new Regulations also provide that if a contracting authority is aware that proceedings have been issued then the automatic suspension will still apply.
Finally, there are some amendments to the position on the service of standstill notices. At present a contracting authority must send a standstill notice to all tenderers who submitted an offer. However the Regulations exclude from this requirement any economic operator whose tender has been “definitively excluded”. A tender will be “definitively excluded” where the tenderer has been notified of its exclusion and a court has held that exclusion to be lawful or where the time limit for challenging the exclusion has expired.
Although only coming into force from October the courts are already used to dealing with the requirement of the new Regulations so it is unlikely that the position will change much. As always, the advice to economic operators is to act quickly if they consider there may be a breach and for contracting authorities to get their procurement decisions right first time. Often easier said than done.