Public procurement challenges: time waits for no bidder… Limitation periods strictly enforced by the court

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Title Summary

In the recent decision Access for Living v London Borough of Lewisham [2021] EWHC 3498 (TCC), the court confirmed that limitation periods will be strictly enforced in public procurement cases and issued a stern warning to ensure parties fully understand the time limits they agree to extend.

Factual background

London Borough of Lewisham (LBL) launched a mini-competition for contracts for the provision of learning support services. Access to live (AFL) entered the competition but was informed on February 7, 2020 that she had not accepted her offer.

Following the decision notice, an automatic ten-day standstill period applied in accordance with section 86 of the Public Procurement Regulations 2015 (PCR), preventing LBL from concluding new contracts during this period. LBL then agreed to extend the standstill period until March 13, 2020.

The AFL initiated proceedings on March 11, 2020. Although this was within the agreed time standstill period – the date of issue was 32 days from the date of the notice of decision, therefore outside the 30-day period limitation period to bring an action imposed by Rule 92 PCR.

Main legal points

The High Court dismissed the AFL’s motion for an extension of time to bring proceedings and struck out the AFL’s claim against LBL. The judge recalled previous case law on strict deadlines for challenging public contracts and confirmed:

  • the fact that the time limit was short was not a “good reason” to extend the time limit for limitation purposes;
  • the fact that the AFL’s lawyers erred in confusing the extension of a stay of the standstill period with a stay of the statutory limitation period, was also not a sufficient “good cause” to extend the time limit ; and
  • The AFL’s status as a charity with a strict decision-making structure to follow in taking legal action was not enough to influence the court’s decision.

Remark

  • This case usefully reiterates the courts’ approach to the operation of standstill periods and limitation periods in the context of the HBP. The case reinforces that courts will take a very strict approach to what would be considered a “good reason” to extend deadlines.
  • The case also reminds practitioners to keep an eye out for both the standstill period AND any statute of limitations – and to be clear about what an agreed extension applies to – standstill, limitation or both.
  • Any unsuccessful bidder concerned about the outcome of a tender should consult a lawyer as soon as possible after notification of the award – as the waiting period and statute of limitations are very short – and can quickly change to side, leaving a bidder without a satisfactory remedy to any complaints. on a tendering process.
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