Consultation On Time Limits In Procurement Actions

The Cabinet Office has launched a consultation on the appropriate time limits for commencing proceedings in procurement cases. This follows the decision of the European Court of Justice in Uniplex (UK) Limited v NHS Business Services Authority in January 2010. The ECJ ruled that time only started to run for the purposes of bringing proceedings when the claimant knew or ought to have known of the breach of the rules and that the requirement in regulation 47(7) of the Public Contracts Regulations to bring proceedings "promptly" and in any event within three months of date when grounds for bringing the proceedings arose is inconsistent with EU law. Regulation 47 therefore needs amending to comply with the judgment.

Consultation

The Cabinet Office is consulting on 3 options:

Option 1: a 10/15 day period to challenge, running from the date of knowledge; Option 2: a challenge period running from the date of knowledge but fixed at longer than 10/15 days; and Option 3: a 10/15 days period to challenge but with discretion to extend to either a period shorter than three months or to three months. Two other options have already been discarded:

Option 4: inserting a provision to the effect that "promptly" can never mean less than 10 days from the date of knowledge but retaining the three month limit and the court's discretion; Option 5: allowing a three month time limit running from the date of knowledge without or without the discretion to extend. Views are sought by 19 January 2011 and the consultation document can be viewed here.

Comment

It is unclear from the Consultation Document which way the Cabinet Office is leaning although the rejection of Options 4 and 5 is interesting. At first glance, equating the 10/15 day period, which applies in relation to the standstill provisions, which require contracting authorities to notify relevant bidders prior to entering into a contract, to the circumstances surrounding a claimant seeking damages would appear to tip the balance very firmly in favour of contracting authorities. Those with legitimate claims...