Limitation In Post-Covid Procurement Claims: What Authorities And Operators Need To Know

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Following a recent High Court case which focused on limitation and communication issues in the post-Covid homeworking context, Gwendoline Davies and Lynsey Oakdene emphasise the importance of acting clearly and quickly when it comes to any potential procurement challenge.

Why is Bromcom Computers v United Learning Trust of interest?

Any organisation which competes for business via public procurement tenders will be aware that the process can be highly complex and often involves the investment of significant time and effort from staff and senior management. Tender outcomes can have a substantial commercial impact and so the ability to obtain legal redress when things go wrong is essential.

Where the Public Contracts Regulations 2015 (PCRs) apply [1], there are legal and procedural hurdles which a claimant must overcome if it is to be able to pursue a public procurement challenge.  One key hurdle is Regulation 92, which provides that a claim for breach of the PCRs must be brought within 30 days of the date when the economic operator [2] first knew or should have known that grounds for commencing proceedings arose.  If a limitation deadline is missed, then the ability to pursue a claim is lost.

The recent case of Bromcom Computers v United Learning Trust [3] is of interest for three key reasons:

  1. The case centred on when the Regulation 92 limitation period might start to run in circumstances where matters relevant to the requisite ‘knowledge’ were discussed remotely – as per the post-Covid ‘new normal’.
  2. The case highlights the importance of potential claimants establishing whether multiple actions of the contracting authority are multiple aspects of one potential breach, which must all be challenged within 30 days of the operator’s knowledge of the ‘first’ action or ground giving rise to the claim; or whether they are breaches of separate duties, in which case the limitation period will run separately in relation to each breach.
  3. The case confirms that potential claimants should beware the ‘drip-feeding’ of reasons for procurement decisions by contracting authorities, and the impact that can have on the triggering of the Regulation 92 limitation period.

What practical advice arises?

The following tips should help avoid time-consuming and costly procurement challenges, or to react quickly and effectively when any dispute does arise.

For contracting authorities:

  • Ensure that tender requirements are as clear and unambiguous as possible. Tenderers need to be able to identify exactly what they need to do to meet the criteria.  Greater clarity from the outset allows for less scope for dispute down the line.
  • When notifying a bidder that it has been unsuccessful, ensure that all relevant information – and in particular the reasons for the decision – is given in a clear, well-structured, methodical manner. Try to avoid ‘drip-feeding’.  This advice applies whether the information is given in writing, or orally (via Teams or other remote communication format).  Where information is given orally, it should be repeated in writing at the earliest possible time.  Doing so should limit the scope for limitation arguments, and should ensure that limitation periods start to run as early as possible.

For economic operators:

  • Upon receipt of an invitation to tender, seek clarification in relation to any requirements which are unclear or ambiguous. Failure to provide clear requirements might constitute grounds for a challenge right from that point, even though the procurement process has not yet been concluded.  Be aware, however, that the time to make a claim in respect of any such failure is likely to start running at this very early stage.
  • If your tender is unsuccessful, seek legal advice urgently. There can be significant traps for potential claimants in trying to work out what duties or actions on behalf of contracting authorities can amount to actionable breaches, and when limitation starts to run in relation to them.  In fact, depending upon the information that is provided by the contracting authority, there is even the risk that any relevant limitation period starts to run immediately the operator learns of its failed bid.
  • When considering whether to issue proceedings within the tight Regulation 92 timescale, remember that the requisite knowledge of an infringement by the contracting authority need not be absolute. As soon as an economic operator has knowledge of any facts which indicate a possible claim, time starts to run fast and it will be prudent to prepare and issue a claim.