How Do You Decide If A Claim For Breach Of The Public Procurement Regulations Was Brought Outside The Statutory 3-Month Limit?

In the case of Mears Limited v Leeds City Council [2011] EWHC 40 (QB) Mr Justice Ramsey had to decide whether proceedings commenced by a disappointed tenderer had been brought out of time.

The Facts:

Mears brought a claim concerning the public procurement by Leeds City Council ('Leeds') in respect of refurbishment works for social housing. During the procurement process, after the deadline for the submission of certain "Outline Solutions Submissions (Quality and Cost)" had closed and after all tenderers had been received, Leeds issued a clarification by letter dated 14 May 2010 to all the tenderers. The letter required that tenderers take into account certain new information. By letter on 18 May 2010 Mears resubmitted its revised pricing. On 2 July 2010 Leeds informed Mears that it had been unsuccessful. After further correspondence, Mears issued proceedings on 12 October 2010. Leeds submitted that Mears were in breach of Regulation 47(7)(b) in failing to bring these proceedings within 3 months of 14 May 2010 or, at the latest, 18 May 2010 and that there are no good reasons for extending the period. It was accepted that what was needed was knowledge of the infringement and not knowledge of the loss; however, Mears said that the date of infringement was when its answers to the PQQ were alleged to have been unfairly evaluated.

The Issue:

Did Mears fail to commence proceedings within 3 months of "the date when grounds for the bringing of the proceedings first arose", as required by Regulation 47(7)(b) of the Public Contracts Regulations 2006 ('the Regulations')?

The Decision:

Mr. Justice Ramsey took the view that it was necessary to analyse the relevant breach or infringement of the Regulations. He summarized previous case law as follows:

The "date when grounds for the bringing of the proceedings first arose" will depend on the nature of the claim in the proceedings. The grounds for making certain claims may arise before there has been any decision to eliminate a tenderer from the procurement process or not to award a contract to a tenderer. Where the claim is based on infringement of the Regulations occurring during the procurement procedure and before any decision has been taken to eliminate a tenderer or award a contract to another tenderer, the date when the grounds arise will depend on when the claimant knew or ought to have known of that infringement. Where a claimant knows or ought to know of the infringement, the grounds for bringing...