Procurement rules may undergo redrafting after a recent judgment by the European Court of Justice (ECJ). In January 2010, the ECJ ruled that the Public Contracts Regulations 2006 (the 2006 regulations) provision which states that claims for breach of the procurement process must be brought “promptly and in any event within three months from the date when grounds for the bringing of the proceedings first arose unless the Court considers there is good reason for extending the period …” is not an accurate translation of the relevant EC law into UK law. Although some of the time periods for claims under the new Public Contracts (Amendment) Regulations 2009, differ from those in the 2006 regulations, they too may be subject to review under the Uniplex ruling.
Uniplex (UK) Ltd participated in a tender run by NHS Business Services Authority (NHSBS) and lodged a claim against NHSBS in March 2008, which was three months from the date NHSBS informed Uniplex of the detailed evaluation of the bids. NHSBS countered that Uniplex had left it too late as the time period for making such a claim had started to run from the moment Uniplex was informed of its unsuccessful bid. However, Uniplex held that the time period for claims had started later, only after NHSBS sent out full details of its evaluation process.
The High Court sought guidance from the ECJ which ruled that it was only once the tenderer obtained sufficient information that it could establish the existence of a breach. This ruling could now mean uncertainty in procurement procedures. For example, how much information will be deemed “sufficient”, will tenderers be obliged to seek relevant information and at what stage will sufficient knowledge be deemed to have been gained? This latter point may become clearer as a High Court decision concerning that issue is expected shortly, watch this space.