Readers will be aware that The Public Contracts Regulations 2006 (the "Regulations") provide a mechanism by which the running of a procurement process and the decisions taken within it can be challenged by bidders and/or others with an interest in the outcome. Because contracting authorities are public bodies, their decisions taken in a procurement context will often also be amenable to judicial review, a route often taken where the claimant is perhaps a disatisfied end user of service that has been outsourced, rather than a bidder within the process. For example, we reported recently on the Virgin Care/Devon County Council/Devon PCT case where an end user challenged a decision to outsource children's health services to Virgin Care.
We have recently had the written judgment in a similar case, R (on the application of Maria Stella Nash) v Barnet London Borough Council & (1) Capita Plc (2) EC Harris LLP (3) Capita Symonds (Interested Parties) , in which the claimant objected to the Council's decision to outsoure a wide range of its services to the private sector. She argued that there had been a failure to consult and a breach of the council's duty under s.149 of the Equality Act 2010. The case hinged on whether the claim had been brought within the required time limits, or not.
A judicial review claim must (until 1 July 2013, when the rules change; see below) be made "… not later than 3 months after the grounds to make the claim first arose". This raised the interesting question for the court in this case of when exactly the grounds “first arose”, given that, as in many procurement processes, the contracting authority’s decision to outsource the services could be said to have been made in various stages.
The Claimant argued that the grounds first arose when the Council actually awarded the contract to Capita and others, and therefore that the claim was within the 3 month time limit. Barnet on the other hand argued the claimant was challenging the decision to outsource the services in itself, rather than the identity of the winning bidder, and that therefore the grounds had first arisen when Barnet commenced the procurement in back in 2011. Therefore the claim was out of time.
The court favoured the Council's argument, perhaps being influenced by the fact that it and the winning bidders had already made substantial financial investment in the process. The court noted that, when deciding when time starts to run when decisions are made in stages, the court will ask whether the earlier decision is merely a "preliminary or provisional foreshadowing of the later decision" (which will not be sufficient to start the clock running), or alternatively, whether "the earlier and later decisions are distinct, each addressing what are substantially different stages in a process" (in which case the earlier decision will be the relevant decision for the question of when "grounds first arose"). This judgment is good news for contracting authorities, as it presumably makes it more likely that judical review applications will be found to be out of time.
Readers should also note that on 1 July 2013 new time limits apply, such that the time limit for a judicial review claim in respect of a decision governed by Regulations will be 30 days from the date when the grounds for the claim first arose, thus harmonizing the time limits for a judicial review claim in the procurement context with those for a procurement challenge under the Regulations.