In a recent High Court judgment the Court has sent a very clear statement that the three month time limit (starting at the point the breach arose) must be respected and just waiting to see if a breach will have a negative consequence for a bidder later on in the process is not good enough.

In this case certain bidder clarifications were issued during a competitive dialogue process on 14 May 2010, and the bidder concerned was informed that it had been unsuccessful by letter of 2 July 2010. The bidder first issued proceedings on 2 October 2010 (exactly three months from the letter of 2 July) but the grounds of claim related to issues that were apparent from the 14 May letter.

Waiting the full three months is clearly permissible since the Uniplex judgment of 2010, but the point of this case was that although the bidder did not know it would lose during the period from 14 May to 2 July, this still counted in terms of dealing with issues that were clearly raised first on 14 May.

Bidders are often tempted to look the other way when they first see apparent breaches of the rules, on the basis that they do not yet know they will lose the bid, but this case makes plain the risks of waiting before taking action.