Procurement in a nutshell – time limits
6th November, 2015
In this Procurement in a Nutshell we will be looking at the time limits for challenge to a procurement process under the Public Contract Regulations 2015 ('the Regulations').
The full regulations are available here.
What’s new?
Procurement challenges are becoming more frequent as tenderers become more sophisticated and familiar with the rules governing public procurement. It is therefore prudent for Contracting Authorities and tenderers alike to familiarise themselves with the time limits that apply to challenge.
Applicable time limits vary depending on the remedy sought and what procedure is used to bring the challenge.
Proceedings under the Regulations
Generally under Regulation 92:
- Proceedings must be started within 30 days beginning with the date when the economic operator first knew, or ought to have known, that grounds for starting the proceedings had arisen (“the date of knowledge”).
- The Court does have the power to extend the time limit where it considers there is a good reason for doing so but must not allow proceedings to be started more than 3 months after the date of knowledge.
Where a declaration of ineffectiveness is sought under Regulation 93:
- Where a contract award notice was published, there is a 30 day time limit from the day after the date on which the notice was published; or
- Where the Contracting Authority has informed the economic operator of the conclusion of the contract and provided a summary of relevant reasons, the time limit is 30 days beginning the day after the date on which the contract was concluded.
In any event, proceedings must be brought within 6 months from the date the contract was entered into.
Proceedings by way of Judicial Review
In general, Judicial Review proceedings must be started promptly and no later than 3 months after the grounds to make the claim arose.
Following the Uniplex decision, if the claim involves issues of European Union law or the enforcement of an EU directive, the ‘promptly’ requirement does not apply.
Where the Regulations apply, the 3 month time limit is reduced to 30 days from the date on which the grounds to make the claim first arose.
Why is it important?
Time limits can be tricky for Contracting Authorities and tenderers, especially when trying to identify the “date of knowledge” and there is a plethora of case law on the issue.
At what point the tenderer “knew or ought to have known” that the grounds for starting the proceedings had arisen has generated much case law, and sometimes constructive knowledge has been enough to start time running.
Additionally, it has been held that this could be before a tenderer knows they are unsuccessful in their bid.
Tenderers especially should therefore keep a careful eye on time limits when they suspect a challenge could arise.
How can I find out more?
If you have any queries on the issues raised or on any aspect of procurement, please contact us via our procurement hotline on 0191 204 4464.
Please note that this briefing is designed to be informative, not advisory and represents our understanding of English law and practice as at the date indicated. We would always recommend that you should seek specific guidance on any particular legal issue.
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