Procurement challenges and limitation periods – when it’s not so good to talk

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Generally, before civil proceedings are commenced at Court, a proposed claimant is required, by the Civil Procedure Rules, to issue a pre-action letter of claim to the proposed defendant in order to ascertain whether the dispute can be resolved without the need for the Court’s intervention.

However, given that procurement challenges are generally subject to a 30 day limitation period, economic operators rarely have the luxury of time to engage in this process and it is likely that claims will be commenced in the Court with little or no prior notice to the contracting authority.

The short time periods which apply in procurement claims also pose significant challenges and competing interests for both parties. The economic operator will want as much information as possible from the public authority to ascertain whether a challenge should be brought; the contracting authority will want to award the contract to the successful economic operator without delay. It is not always apparent whether a contracting authority has breached the relevant legislation or when time might start to run for the purpose of bringing a challenge.

Whilst the court does have a discretion to extend the limitation period by up to a maximum of 3 months, this is only likely to apply in exceptional circumstances and where it considers that there is a good reason for extending it.

The limitation period commences when an economic operator knows or ought reasonably to have known that there has been a breach. Communication of rejection may not, in itself, place an economic operator in such a position to enable it to start a claim – it requires sufficient information to enable it to determine whether the authority’s decision is well founded and to assert its rights before the Court. Additionally, grounds for making certain claims may arise before there has been any contract award decision, for example, if there are problems with the Invitation To Tender documents; such claims could arise during the process and the 30-day limitation period could expire well before economic operators know the outcome of the procurement. Economic operators who wait to see whether they have been successful before looking to challenge potential breaches could well find themselves out of time.

In all cases, bringing a claim means issuing a claim form at Court. Notifying the contracting authority of a potential claim is not sufficient. The claim form must also be served on the contracting authority within 7 days of its issue at Court.

In our next blog, we consider the standstill notice, the standstill period and obligations on contracting authorities.