As you may well know, on 1 October 2011, the Public Contracts Regulations 2006 were further amended by the Public Procurement (Miscellaneous Amendments) Regulations 2011. One reason for this was as a result of the Uniplex decision, (see Issue 114.) In Uniplex, the European Court had suggested that the current UK requirements to bring procurement challenges promptly were imprecise and uncertain. The result of these changes is to increase the pressure on a contractor who considers that he might want to challenge the tender process, to do so promptly, albeit as the Alstom case demonstrates, that is already something contractors must be alive to, and by promptly we mean from the date when the contractor suspects that there has been a breach, and that, of course, is not necessarily at the end of the tender process.
The key change introduced is that the time limit for bringing a procurement claim will be reduced to 30 days from the date of knowledge, that is the date on which the economic operator first knew, or ought to have known, that grounds for starting proceedings had arisen. The court will continue to have discretion to extend this period where there is good reason for doing so, subject to an absolute maximum period of three months. If the date of knowledge was before 1 October 2011, then the old time limits, namely three months from the date of knowledge will continue to apply.
If a formal claim is to be made, the new regulations make it clear that proceedings will commence, and the time clock will stop ticking, on the issue of the claim form rather than the date of actual service on the defendant. The claim form must however then be served on the contracting authority within 7 days after the date of issue.
The amended Regulations also make it clear that the automatic suspension of a contracting authority’s ability to enter into a contract will be triggered when that contracting authority becomes aware that a claim form relating to the contract has been issued. Finally, the Regulations have also been amended to reflect the new criminal offences introduced by the Bribery Act 2010, which came into effect on 1 July 2011.