Public Procurement, Take Care If You Qualify Your Tender

Public Procurement - Limitation

In the case of Turning Point Limited v Norfolk County Council [2012] EWHC 2121 (TCC), Mr Justice Akenhead had to consider issues of limitation as well as qualifications/caveats to tenders in public procurement.

The Facts:

In September 2011 Norfolk County Council ("the Council") published a Contract Notice in the Official Journal of the European Union for a contract regarding an Adult Drug and Alcohol Treatment system. Turning Point Ltd ("Turning Point") successfully pre-qualified having submitted their completed Pre-Qualification Questionnaire ("PQQ") in November 2011. In December 2011 the Council invited Turning Point and others to tender for the project, sending them the Invitation to Tender ("ITT"). The ITT contained key information, the contract requirements/terms, the overall weightings to be given in the evaluation of the tenders, and a condition stating that the Council:

"will accept no caveats to proposals or variant bids...." Turning Point submitted a number of questions seeking clarification on the ITT. The Council responded in January 2012. Even with the Council's answers, Turning Point still considered that the Council had not provided adequate or complete information from which they could accurately estimate certain costs. Nevertheless, Turning Point submitted a tender in February 2012 within the specified time. They did however include a note on their pricing schedule ("the Note") stating that:

"...due to the lack of full and complete TUPE information, it is assumed that the restructure of staffing will be achieved through natural wastage and therefore we have assumed no redundancy costs. If redundancies were to occur, we would wish to enter into further discussions." On 12 March 2012 the Council informed Turning Point that they had not been successful as their tender contained a qualification by way of the Note. Turning Point complained and on 28 March 2012 issued proceedings challenging the Council's award, claiming that the information provided at the tendering stage was wholly inadequate and incomplete and that the Council was in breach of the Public Contracts Regulations 2006 ("the 2006 Regulations"). Furthermore, Turning Point claimed that there was a breach on an implied contract that the Council was required to act fairly towards them in the tendering/assessment process.

The Council denied any breach of the 2006 Regulations and asserted that the proceedings were brought too late as they...