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No extra time in procurement challenges

Wednesday August 14th, 2013

The recent High Court procurement case of Corelogic Limited v Bristol City Council (EWHC 2088 (TCC)), in which Veale Wasbrough Vizards latterly acted for the Claimant, is another strong reminder of the need to bring challenges under the Public Contracts Regulations 2006 (‘the Regulations’) within the strict prescribed time limits and to ensure that each head of claim is articulated within the Claim Form itself.

David Hansom

David Hansom

Following Bristol City Council’s (‘the Council’) decision to award an IT contracts management system contract to another party, the Claimant issued proceedings for a breach of the procurement rules. This suspended the contract award decision.

The original Claim Form purporteda breach of Regulation 4(3) of the Regulations and/or enforceable EU law obligations, in particular, the principles of equal treatment, transparency and non-discrimination”. By agreement, the time limit for serving the Particulars of Claim was extended and these were filed some ten weeks later. The Particulars of Claim outlined details of claims for alleged manifest error in the evaluation and the use of undisclosed criteria by the Council.

On the same day, the Claimant applied to amend the Claim Form so as to include reference to manifest error (in breach of Regulations 4(3) and 19(9)(d)), as well as non-disclosure of the formula the Defendant used for translating prices into scores and application of an undisclosed award criterion.

The Claimant argued that the amendments were simply to clarify the existing pleading, which could also be read from the preceding correspondence between the parties and the Particulars of Claim. The Defendant disputed this and argued that the additions raised new claims which were time barred under the Regulations.

The Court held that the amendments to the Claim Form introduced new causes of action, and, as brought outside of the 30-day limitation period, were time barred under the Regulations. The Court took the view that the amendments did not arise from the same or substantially the same facts (as the original claim related to post-tender matters, whereas the amendments were regarding issues during the tender).

The Corelogic decision shows the importance of ensuring that the Claim Form correctly pleads all potential claims at the time of issue in order to comply with the tight deadlines for disputing a procurement decision. A second bite of the cherry will not be permitted. For contracting authorities, it is important to ensure that any Particulars of Claim or applications to amend Claim Forms are considered to ensure that Claimants are not introducing new claims outside of the strict deadlines.

David Hansom

Online: www.vwv.co.uk

Twiter: @vwvlawfirm

LinkedIn: David Hansom

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