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The Public Procurement (Miscellaneous Amendments) Regulations 2011

22 September 2011

The Public Procurement (miscellaneous amendments) Regulations 2011

From 1 October 2011, the Public Procurement (Miscellaneous Amendments) Regulations 2011 (the Miscellaneous Amendments Regulations) will amend the Public Contracts Regulations 2006 (the Regulations). The most important of these miscellaneous amendments is that the time limit for commencing legal proceedings now runs for 30 days, but starts from the date a potential claimant knows, or ought to know, that they could bring a claim.

Time limits

As outlined above, the Miscellaneous Amendments Regulations change the time limit for bringing an action in relation to a public procurement exercise to 30 days from the date of knowledge - the date the potential claimant first knew or ought to have known that the grounds for bringing an action had arisen.

The Regulations originally provided for a three month time limit, which a court could extend indefinitely if it considered that there was a good reason for doing so. The European Court of Justice (ECJ) felt that this did not did not provide sufficient certainty and so the Miscellaneous Amendments Regulations seek to bring the Regulations into line with the current case law in particular the decision in the Uniplex case.

At first glance, a reduction from three months with a possible indefinite extension, to 30 days with a possible extension to three months seems onerous for potential claimants. In reality the three-month time limit (and extension) was rarely open to claimants. Although claims were almost always only brought after an award decision, the courts expected proceedings to be issued almost immediately after the decision was communicated, ordinarily within a matter of days. So should a bidder only become aware of grounds for a claim on the date that a contract was awarded to a competitor, they will in effect have a longer period in which to bring a claim as a result of these amendments.

However, under the Miscellaneous Amendments Regulations, the clock will often start ticking much earlier than this, once a bidder spots a potential flaw in the process. As such bidders may be faced with no choice but to issue proceedings whilst a public procurement process is still underway in order to comply with the 30 day time limit. Given that the test setting out whether a court may allow an extension has not changed (i.e. when the court considers there are good reasons to do so) it may be difficult to persuade a court to allow extensions beyond the 30 day limit. Bidders may find themselves deciding whether to continue with a flawed process and attempting to bring a claim if they are unsuccessful or bringing a claim as soon as the issue is apparent.

Time will tell whether courts are going to utilise their power to allow three month extensions as it is difficult to see why allowing bidders to wait until the process is complete would be a good reason once the Miscellaneous Amendments Regulations come into force. If a process runs for longer than three months from date of knowledge then any right of action could fall away unless new and unconnected breaches come to light. Potential claimants may feel it necessary to issue protective proceedings whilst still part way through a public procurement exercise in order to avoid missing the limitation period. Alternatively, courts may prefer to allow extensions in order to limit the numbers of claims being issued. We wait with interest for the approach of the market and the courts.

Other amendments

Promptly requirement

The requirement that proceedings be brought promptly is removed from the Regulations. Given the 30 day time limit, it is arguable that proceedings must still be brought promptly in order to comply, but it is possible that extensions to the limitation period could be granted in circumstances where proceedings have not been brought promptly but the court still feels that an extension is appropriate. The removal of this requirement should mean that claimants always have 30 days to consider claims, whereas claimants may have previously only been allowed a few days in which to issue and serve a claim at the end of a procurement process.

Issuing proceedings and serving the claim form

The Miscellaneous Amendments Regulations change the date at which proceedings are started (for the purposes of limitation periods) to the date that the claim form is issued, rather than the date it is served on any defendants. This alteration will provide a few days grace to claimants, who have to undertake fewer steps to ensure their claim falls within the newly reduced limitation period. This will be particularly important for those claimants who are required to issue part way through a public procurement exercise. The claim form must be served within seven days of the date of issue, meaning that it can be served outside the limitation period.

Communicating award decision notice

Contracting authorities will no longer be required to communicate decision notices to any tenderers whose offers have been definitively excluded. An exclusion will only be classed as definitive if the relevant tenderer has been notified and either:

  • the exclusion has been held to be lawful by the courts, or
  • the maximum permissible time limit for commencing proceedings (three months including the discretionary extension) has expired.

Automatic suspension

The automatic suspension provisions of the Regulations (which previously required a contracting authority not to enter into the relevant contract once the claim form was served) will apply when the contracting authority becomes aware that the claim form has been issued.

Criminal offences

The list of convictions which prevent a contracting authority from entering into a contract with economic operators has been expanded to include offences under the Bribery Act 2010.

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Peter Ware

Peter Ware

Partner and Head of Government Sector

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