Consultation On Time Limits For Procurement Law Claims

The Cabinet Office has published a consultation document seeking views on options for amending the statutory time limit for bringing proceedings for breach of the public procurement rules. The European Court of Justice (ECJ) recently held, in the Uniplex case, that the current limitation rules in the UK public procurement Regulations do not comply with EU law.

The current rules

Under the current rules proceedings to challenge a decision by a contracting authority for alleged breach of the public procurement rules should be brought "promptly and in any event within three months from the date when grounds for the bringing of the proceedings first arose, unless the Court considers that there is good reason for extending the period". A recent amendment to the definition of "promptly", following the implementation of the new EU Remedies Directive (Directive 2007/66), ensures that proceedings never need to be brought before the expiry of the 10/15 day standstill period.

The Uniplex judgment

In the Uniplex judgment of 28 January 2010, the ECJ held that:

time should not start to run until the date on which the claimant knew, or ought to have known, of the alleged breach of the procurement rules; and the requirement to bring proceedings promptly, which leaves the court with the discretion to dismiss an application even where the three month time limit has not yet expired, is inconsistent with EU law as it is not precise and makes the limitation rules uncertain. Accordingly, the Cabinet Office is now consulting on two changes that need to be made to the UK public procurement rules to ensure compliance with EU law:

the time limit must run from when the claimant knew or ought to have known of the infringement; and the uncertain nature of the requirement to act "promptly" must be removed. For more details on the Uniplex case see our previous law-now.

Options for consultation

The Cabinet Office is now seeking views on three options. Option 1: shortening the time period to 10/15 days from the date of knowledge of the infringement. This would comply with the provisions of Directive 2007/66 but would give the court no discretion to extend the time limit. Whilst the time limit is short, it is the same as the conventional standstill period for bringing a challenge for pre-contractual remedies (rather than damages). From the claimant's perspective this is a short time period within which to mobilise resources. But the option does provide legal certainty for...