26 January 2021 #Public Procurement
A very short and strict time limit of 30 days applies to claims brought under the Public Contracts Regulations 2015. The time for beginning court proceedings starts running from the ‘date of knowledge’ – this is the date on which the bidder has sufficient information to believe that it may have a claim for breach of the Regulations.
This may be the same as the date on which the bidder is notified of the outcome of the tender, but can be before or after this, depending on the circumstances and the type of breach alleged.
The issue of the 30-day time limit and when it starts running has recently been considered by the High Court in two cases. In Riverside Truck Rental Ltd v Lancashire County Council, the Claimant had challenged the outcome of a tender, alleging four different breaches of the Regulations.
One complaint related to a lack of clarity in the invitation to tender documents, while another related to the application of the evaluation criteria by the authority. The court confirmed that where there are multiple complaints, the 30-day time limit starts running on the date of knowledge for each individual breach, not from the date of knowledge of the last alleged breach.
On the facts, this meant that the Claimant’s complaints relating to the invitation to tender documents were out of time and the evaluation criteria were out of time. Although the court has the power to extend the 30-day time limit up to a maximum of 3 months in exceptional circumstances, it declined to exercise that discretion in this case because there was no good reason for the Claimant’s failure to start court proceedings within 30 days of the date of knowledge. Two of the Claimant’s complaints were therefore struck out.
In Bromcom Computers plc v United Learning Trust and United Church Schools Trust, there was a dispute about the date of knowledge. The Claimant had been notified that its bid was unsuccessful and provided with a feedback letter containing the scores it had received for each section of the tender. However, the letter did not provide adequate reasons for the scores awarded, as required by the Regulations.
A few days after this, the authority provided the Claimant with feedback during two meetings conducted by Microsoft Teams. The meetings were said to have involved heated discussion and the second also experienced technical difficulties. Finally, almost three weeks later, the authority provided a more detailed feedback letter, which confirmed in writing the oral feedback.
So when was the ‘date of knowledge’ – was it the date of the original letter notifying the Claimant of the outcome, the date of the meetings, or the date of the more detailed feedback letter? If the court decided that it was the date of the original letter or the date of the Teams meetings, then the claim would have been out of time.
The court decided that the Claimant did not have the requisite knowledge until it received the detailed feedback letter, three weeks after it was originally notified of the outcome of the tender. Although the letter did not really provide the Claimant with any additional information over and above what had been provided orally in the Microsoft Teams meetings, the Court decided that those meetings were not structured or methodical and the Claimant’s ability to assess the feedback at them was limited. Accordingly, the claim was not out of time.
These decisions are an important reminder for bidders that the 30-day time limit is interpreted strictly and legal advice should be taken as soon as a bidder has any suspicion that it may have a claim.
Whilst in the Bromcom case the court found in the Claimant’s favour on the date of knowledge, the heated nature of the meetings and the fact that they took place via video conferencing was a significant factor for the court in reaching this conclusion. In a more formal, structured meeting, it is more likely that the date of knowledge will start to run from when information is provided verbally.