When Does Time Start to Run? Two Contrasting Cases on the Time Limits for Bringing an Action Under Public Procurement Law.

22 November 2013

Practice Area: Procurement

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1.  Nationwide Gritting Services Limited v The Scottish Ministers[1]

Facts

Transport Scotland is an agency of the Scottish Ministers and has responsibility for the management and maintenance of trunk roads in Scotland. During the very cold winter of 2010/2011 Transport Scotland purchased de-icing road salt in January 2010 and between August 2010 and February 2011. The salt was purchased from a number of suppliers.

The procurement of the salt was above threshold and therefore governed by the Public Contracts (Scotland) Regulations 2006 (as amended) (the Scottish Regulations). These are broadly comparable to the Public Contract Regulations 2006 (as amended) that apply to Northern Ireland, England and Wales.

Nationwide Gritting Services Limited (NGS) is a pan European supplier of road salt based in England. During the course of 2010 and 2011 NGS contacted Transport Scotland by telephone and email to try and secure business.

In August 2010 the Scottish Salt Group published a report (available on the internet on the website for Transport Scotland) about road treatment in Scotland during the winter of 2009/2010. In this report it stated that Transport Scotland had purchased emergency supplies of salt. In December 2010 the Taxpayers’ Alliance published a report which also indicated that Transport Scotland had purchased road salt from a number of named suppliers (none of which were NGS). On 27 April 2012 a customer of NGS informed NGS that Transport Scotland had purchased road salt and was storing it.

NGS wrote an email to Transport Scotland on 30 April 2012 stating that they had heard about the purchase of the road salt but could not find “any request for a quote or any published tender for such provision of salt”. It further stated that it could not find any notice of the contract for the storage of the road salt either.

Transport Scotland responded on 30 May 2012. In its response, Transport Scotland stated that, given the “extreme urgency” of the situation, derogation from the Scottish Regulations had been granted to allow the procurement to proceed immediately.

NGS challenged the direct award and Transport Scotland maintained that it was entitled to enter into the contract due to “extreme urgency” although did admit that it failed to publish a contract award notice.

NGS commenced proceedings on 28 August 2012. The issue before the court in this hearing concerned the Scottish Ministers’ submission that the NGS claim was time barred. The relevant limitation period during this time was three months.

Judgment

It was noted that the key issue was the degree of knowledge that NGS had before 28 May 2012. In assessing this, the Court looked at three circumstances:

1.  There were no existing business relations between NGS and Transport Scotland. NGS had tried to sell to Transport Scotland in 2010 and 2011 and it would have been easy for Transport Scotland to inform NGS that it had already obtained supplies, but it did not. The Court also noted that Transport Scotland did not normally purchase road salt as this was normally undertaken by local authorities and the contractors responsible for the trunk roads.

2.  Transport Scotland could have purchased the road salt in accordance with the Scottish Regulations, for example under an existing framework agreement. There was no reason for NGS to assume that Transport Scotland, as a contracting authority, had acted in breach of the procurement legislation.

3.  The failure by Transport Scotland to publish a contract award notice in the OJEU was significant – if that notice had been published there would be no doubt about the day NGS knew or ought to have known about the directly awarded contracts.

The judge stated that NGS may have had suspicions in 2010 and 2011, but that this did not amount to hard information. Further, what NGS had been told by the customer was hearsay evidence, and NGS acted properly by asking Transport Scotland for information on the matter. The wording of the NGS email did not suggest that NGS had sufficient information to make an informed decision.

The Court concluded that, as at 28 May 2012, NGS only suspected that an infringement had occurred (it was not until the Transport Scotland email of 30 May 2012 that these suspicions were realised). Therefore, the grounds for proceedings had not arisen by 28 May 2012, and the time-bar argument was rejected. The case was referred for full trial at a later date.

Comment

It is important to note that the time limit for bringing proceedings is no longer 3 months. It is now 30 days beginning with the date when the economic operator first knew or ought to have known that grounds for starting the proceedings had arisen. However, this case helps to illustrate the level of knowledge required by the operator to start the limitation period. It is noteworthy that in the absence of any award notification to the market the Court decided that knowledge only arose when Transport Scotland sent the email of 30 May 2012 stating that there had been a number of direct awards.

2.  Corelogic Limited v Bristol City Council[2]

Facts

Bristol City Council initiated a mini-competition for the provision of local government software under an established framework agreement. Two companies, Corelogic and Liquidlogic, were invited to submit tenders. Corelogic’s tender was unsuccessful and it requested further information about the price taken into account during the tender evaluation. The standstill period was extended. Before the end of the extended standstill period, Corelogic’s solicitors wrote to Bristol City Council claiming that the award decision letter failed to include the information required by the Public Contract Regulations 2006 (as amended) (the Regulations).

A further extension of the standstill period was granted and Corelogic issued proceedings before this expired. During the course of proceedings Corelogic became aware of certain other grounds for action and wrote to Bristol City Council with a draft amendment to the claim form (i.e. the writ). Bristol City Council objected to the amendments arguing that they raised new causes of action which were statute barred as they were raised outside the 30 day limitation period.

The original claim form stated that the post-tender feedback was inadequate and was in breach of the Regulations and/or the EU principles of equal treatment, transparency and non-discrimination. However, the amended claim form made additional allegations of manifest errors in the assessment of Corelogic’s tender price and alleged that Bristol City Council had failed to disclose the formula used for calculating scores as well as applying an undisclosed award criterion.

Bristol City Council claimed that these amendments to the claim form constituted new claims, however Corelogic argued that the amendments to the claim form were simply clarifications, and this was clearly apparent from the context of the original claim form.

Judgment

The High Court concluded that the amendments to the claim form amounted to new claims that did not arise out of the same or substantially the same facts as those set out in the original claim form. The court noted that different parts of the Regulations were cited in the original claim form to those cited in the amended claim form. The damages being claimed were also different.

In addressing the limitation period, the court identified the date upon which Corelogic knew that the new claims could be pursued and found that the date of the amendments (taken as being the date for the hearing) was outside the strict 30 day limitation period set down by the Regulations. No grounds for an extension of time were found and the High Court refused the amendments to the claim form.

Comment

This case highlights the importance of ensuring that the writ covers not just known claims but also potential claims which might come to light as more information emerges through the course of the litigation process. The case is also a clear warning that causes of action not included in the writ cannot then be brought outside of the 30 day limitation period.

Judicial Review and time limits for action in Northern Ireland

In England and Wales the Civil Procedure Rules 1998 (S.I. 1998/3132) were amended by the Civil Procedure (Amendment No.4) Rules 2013 which brought the limitation period for judicial review, in respect of decisions governed by the Regulations, into line with the limitation period under the Regulations, namely 30 days. However, the Civil Procedure Rules do not apply in Northern Ireland, therefore the limitation period here for judicial review of a decision taken under the Regulations remains as is, namely promptly and in any event within three months from the date when grounds for the application first arose (until such time as any mirror-image legislation is passed by the NI Assembly).

[1] Nationwide Gritting Services Limited v The Scottish Ministers [2013] CSOH 119

[2] Corelogic Limited v Bristol City Council [2013] EWHC 2088 (TCC)

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