UK Public procurement challenges
Don’t get caught out by strict time limits
The case of Riverside Truck Rental Limited (“Riverside”) v Lancashire County Council (the “Council”) is a salutary case which shows the importance of making sure that claimants comply with the strict time limits set down in the Public Contracts Regulations 2015 in procurement disputes.
The dispute resulted from Riverside’s early exit from a tender process for a contract for the supply of trucks and maintenance services for the Council. Its bid was rejected for failing to comply with the terms of the Council’s invitation to tender.
Riverside commenced not one but two sets of proceedings in two divisions of the High Court. It issued a claim in the Technology & Construction Court alleging that the Council had breached the Regulations by rejecting its tender. It sought a declaration and damages for the alleged breaches (the “Procurement Claim”). Riverside also commenced proceedings in the Administrative Court seeking judicial review of the Council’s decision to disqualify it from the procurement process (the “Judicial Review Claim”).
Riverside failed to issue the Procurement Claim within the 30-day period allowed under Regulation 92(2) even though it was represented and advised by solicitors and counsel. It also then failed to persuade the court that there was a good reason to extend the time period for compliance under the Regulations. His Honour Judge Eyre QC held as follows:
“None of the matters set out by the Claimant amounts of itself to a good reason for extending time. I have also considered them as a combination of factors taking a broad approach to see whether in the circumstances seen as a whole there is a good reason for extending time. In that exercise it is relevant that the Claimant was not pointing to matters outside its control as having prevented it from commencing proceedings in time. The reality is that the Claimant failed to start the Procurement Claim in time because it adopted a mistaken view of the appropriate line of challenge and of the applicable time limits and because it was not minded to commence proceedings until it knew whether or not it would have been the successful tenderer if it had not been excluded because until then there was a prospect that the proceedings would not be worthwhile commercially. None of that amounts to a good reason for an extension and I have concluded that even when the matter is viewed in the round there is no good reason for an extension and so the application for an extension must fail.”
Also dismissing Riverside’s application to extend time to pursue its Judicial Review Claim, the judge stated as follows:
“In these circumstances there was no reasonable objective excuse for the failure to issue the Judicial Review Claim in time. As with the Procurement Claim the reality is that the claim was issued out of time because the Claimant failed to appreciate that the relevant time limit was 30 days from 29th November 2019…
“[Riverside] knew of its disqualification from the exercise and of the Defendant’s conclusion that Monks were the successful tenderer on 29th November 2019. The Defendant extended the standstill period by 2 days. The Claimant sent a letter threatening legal proceedings on 2nd December 2019. On 12th December 2019 the Claimant said that proceedings would be issued within the week. Despite that proceedings were not issued. The Defendant replied in detail to the letter of 18th December 2019 on 10th January 2020. On 13th January 2020 the Defendant responded to the Claimant’s letter seeking an extension of time by saying that judicial review proceedings were not appropriate (indeed questioning whether they were “even permissible”) and saying that time had expired for a claim under the Regulations which would otherwise have been the appropriate course.”
The hearing was a very expensive one for Riverside. It picked up an adverse costs order following the dismissal of both of its applications to extend time and would also have been held liable for the costs of its defective proceedings.
This case reinforces the need to take quick action when dealing with a procurement challenge and not to prevaricate. This often involves high levels of risk. In many cases it is often not clear if a claimant has a good claim until after statements of case have been exchanged and disclosure has taken place. The time limits under the Regulations are not claimant friendly. This is not accidental drafting.