Make Sure Your Procurement Challenge Covers All Bases: A Warning On Time Limits
A decision of the English High Court has provided a reminder of the strict approach that the courts take when it comes to enforcing the time limit for challenging procurement decisions (Corelogic Limited v Bristol City Council  EWHC 2088 (TCC).
Under an existing framework agreement, Bristol City Council carried out a ‘mini competition’ for a new adult social care management system. Corelogic was one of two bidders, but ultimately it was unsuccessful.
Although there is no requirement for a contracting authority to adopt a standstill period in relation to a call-off contract under a framework agreement, the Council voluntarily chose to do so. It wrote to Corelogic informing it of its decision, and provided a breakdown of the scores awarded to Corelogic and the successful bidder. Corelogic wrote to the Council stating that it did not feel the Council had provided sufficient information to enable it to understand the relative advantages and disadvantages of the successful bid.
Timescales of the challenge
On 8 April 2013, Corelogic issued court proceedings, which were formally served on the Council on 10 April with a covering letter asking for an extension of the time for serving the detailed Particulars of Claim. The Council agreed to the extension, and some further correspondence between the parties followed.
On 21 June 2013, Corelogic applied to the court for permission to make two amendments to its claim. The first alleged that the Council had made a manifest error in assessing Corelogic’s bid price, and that had this been assessed correctly, Corelogic would have won the competition. The second amendment claimed that the Council had applied an undisclosed award criterion – namely, the formula that would be used for translating prices into scores.
The procurement rules impose a very tight time scale for bringing court proceedings – 30 days from the date that the aggrieved party learns it may have grounds for challenge. In this case, the court considered that Corelogic’s amendments were time-barred.
Corelogic had known of the ‘manifest error’ and ‘undisclosed award criterion’ arguments since 9 May at the latest, when its solicitor wrote to the Council addressing those issues. However, the court noted that the initial claim was based solely on the alleged failure of the Council to provide sufficient information, and made no mention of Corelogic’s concerns about manifest errors and the undisclosed award criterion. In seeking to introduce these bases of claim on 21 June, Corelogic was well outside the 30-day limitation period.
Will this ruling apply in Scotland?
The Corelogic decision highlights that it is not enough to have simply raised proceedings within the 30-day time limit. Challenging parties must ensure that all aspects of their claim are set out in the proceedings – and on time. Although this is an English case, the Scottish courts tend to follow the approach of English case law in procurement-related matters.
It is worth highlighting that while a 30-day limitation period also applies in Scotland, in practice there is a need to start thinking about litigation a bit earlier here than in the rest of the UK. This is partly due to the Scottish requirement that, before proceedings can be brought, an aggrieved bidder must first serve a pre-action letter informing the authority of the basis on which it considers that there has been a breach of the procurement rules.
However, there is an additional difference in the Regulations that apply in the two jurisdictions. The Scottish Regulations state that proceedings ‘shall be brought’ within 30 days, which we understand to mean that they must be formally served on the contracting authority. In contrast, the Regulations which apply in the rest of the UK require only that the proceedings are ‘started’ within 30 days, and must then be ‘served’ within 7 days after the date of issue (i.e. the date that the writ is warranted by the court). It is important for businesses operating throughout the UK to be aware of this subtle difference in the procedural requirements.
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