Cases continue to reach the courts where unsuccessful tenderers are claiming unfair treatment in the tender process. In Amaryllis Limited v HM Treasury sued as OGCBuying Solutions [2009] EWHC 962, Amarylis alleged breaches occurred in connection with the evaluation of tenders from framework contractors for the supply, delivery and installation of furniture for use by and on behalf of UK Public Sector Bodies. The defendant applied, unsuccessfully, to strike out the claim on the basis that: (a) contrary to Regulation 47(7), the claimant had failed to provide written notice of the breach and its intention to bring proceedings under the Regulations; and (b) the claimant had not brought proceedings within three months from the date when grounds for so doing first arose. To read the judgment click here.

Amaryllis v OGC Buying: On 30 November 2007, the OGC advertised the establishment of a framework agreement for use by or on behalf of UK Public Sector Bodies for the supply, delivery and installation of furniture and associated services on a national basis. The claimant submitted a Pre-Qualification Questionnaire and was subsequently informed that it had been successful on Lots 2, 3, 4 and 5 but unsuccessful on Lots 1 and 6. The claimant wanted to know why and requested a de-brief. It advised OGC that it ‘strongly contested’ its decision to exclude them from Lot 1. OGC replied the same day, but their letter failed to provide a clear or cogent explanation as to how and why the claimant had been unsuccessful on Lot 1. Over the next few weeks, the claimant continued to make enquiries of other tenderers and to consider whether or not to continue with the second stage for Lots 2-5. On 23 May 2008, the claimant notified the OGC in writing that it would not be submitting a tender for Lots 2-5, as it had lost confidence that any tender submissions would be given a fair and valid assessment.  

On 4 June 2008, the claimant wrote again to the defendant, complaining that the defendant had provided insufficient information to enable it to identify with precision all of the breaches of the Regulations and general Treaty principles that had occurred and asking for answers to specific questions. That finally prompted an adequate response on 8 July, when the defendant explained, for the first time, why the claimant had been unsuccessful in relation to Lot 1. In view of the time constraints, however, the claimant had had no option but to commence proceedings on 16 June 2009, in advance of obtaining this information from the defendant.

The court noted that, where a party alleges that a breach of the Public Contracts Regulations 2006 has occurred, the notice must clearly identify the actual breach of which complaint is made. That had occurred in this case. Time then starts to run from the point when an irrevocable decision is taken by the defendant to exclude the claimant from the list of successful tenderers - in this case, the date on which the defendant wrote to inform the claimant that its bid in relation to Lot 1 had been unsuccessful.

In considering whether or not the claimant had met that deadline, it was reasonable to compare the claimant’s speed of reaction during the relevant period with the defendant’s conduct during that same period. Where, as here, the claimant’s speed of reaction had, in some way, been dictated by the defendant’s failure to provide information that was available only to the defendant, that had to be taken into account. Here, it had taken the defendant almost three months to provide the claimant with the information to which it was entitled.