A reminder that procurement claims must be brought within time and by economic operators with the necessary standing

A national health trust (and incumbent provider of the services being procured) (“the Trust”) challenged a contracting authority’s contract award decision. The Trust had decided not to bid for the contract but sought an order to prohibit the authority from entering into the contract with the winning bidder.

The claims put forward by the Trust included that the authority had breached the principles of proportionality and transparency, and that it had accepted an abnormally low bid. The authority sought for the Trust’s application to be struck out.

The High Court agreed with the Trust and struck out the claim on the following basis:

• the Trust was time-barred under Regulation 92 of the Public Contracts Regulations 2015 as amended (“PCR”) and there was no good reason to extend the deadline;
• the Trust had interpreted the disclosure obligations on contracting authorities under Regulations 55 and 86 PCR too widely – the Trust was not entitled to receive certain information about the conduct of the procurement when it had decided not to participate.

The Court also commented that the Trust had not in any event shown that it had suffered loss or risked suffering loss in consequence of any breach of duty. It’s decision not to tender deprived it of the rights created by Regulation 86 PCR.

Royal Cornwall Hospitals NHS Trust v Cornwall Council [2019] EWHC 2211 (TCC)

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