HT-2023-000379 - [2024] EWHC 1201 (TCC)

DISCUSSION AND DECISION ON REGULATION 92(3)(c)

In my judgment, the correct analysis is as follows.

As I have explained in paragraph 51 above, time runs from knowledge pursuant to Regulation 92(2). (It is necessary to be more precise as to the date upon which time starts to run when considering the Day 1 point, but for present purposes it is sufficient to describe this in general terms.) Regulation 92(2) is subject to Regulation 92(3)(c), but it is wrong to say that the 30 days did not begin to run until the decision was published, as the Claimant alleges. The 30 days run from knowledge, subject to, in effect, any minimum period that might be applicable under Regulation 92(3)(c).

Is Regulation 92(3)(c) arguably engaged?

The Claimant says, straightforwardly, that since (as is common ground) sub-paragraphs (a) and (b) do not apply, (c) is in principle engaged. The Defendants seek to avoid this conclusion by relying on [C] in Article 2c of the Remedies Directive and contending that there was a ‘specific notification’ by the 18 September letter.

In my judgment, the sentence at [C] of Article 2c is to be read in the context of the Article as a whole, and ‘specific notification’ (although not defined) is intended to be a reference to communications sent to the tenderer or candidate in a procurement competition, which are referred to in the earlier part of the Article; and which are the subject matter of Regulation 92(3)(a) and (b). The draftsperson of Regulation 92(3)(c) did not use the language of ‘specific notification’ at all; they must have equated this to a situation where sub-paragraphs (a) and (b) do not apply. It is common ground that there were no such communications in this case (and that the 18 September letter, whilst a communication to the Claimant, was not a notification of a decision within or following a tendering process involving the Claimant).

That conclusion might well suggest that the Defendants are right to say that the whole of Regulation 92(3)(c) is concerned with the situation of tenderers and candidates. But I am prepared to assume in the Claimant’s favour, without deciding the point, that Regulation 92(3)(c) can in principle apply to cases which did not involve a claimant as tenderer or candidate, principally on the basis that the reference within Article 2c to Article 2(1)(b), although a somewhat obscure cross-reference, might suggest that it applies to any situation of unlawful decision howsoever it arose.

In other words, I will proceed on the basis that sub-paragraphs (a) and (b), as construed in line with the Remedies Directive, “do not apply”, and that the Claimant gets through this initial part of the gateway in Regulation 92(3)(c).

But importantly this is subject to the issue of publication.

I am prepared to make these assumptions on a summary application because, as will be seen, I do not consider that Regulation 92(3) assists the Claimant, even if it is engaged.

The next issue concerns the meaning of “but the decision is published”.

On this, I accept the Defendants’ submission that Regulation 92(3)(c) only applies if the decision has been ‘published’. That is what the Regulation says on its face: the gateway to its application opens if sub-paragraphs (a) and (b) do not apply but there is a publication. It contemplates a publication of a decision, and then provides for a minimum period following that publication.

In my judgment, the rationale for Regulation 92(3) is that any limitation period must allow a claimant at least a short time to consider any relevant communications sent to it (sub-paragraphs (a) and (b)) or (if no such communications took place) after any publication that may have occurred. If there are no relevant communications or publications, then the limitation period is the basic one under Regulation 92(2), which is dependent on a claimant’s knowledge as to whether grounds for a claim had arisen.

The Claimant submits that it cannot be right that an authority can avoid the 10 day period by failing to publish its decision, and if it does not do so, it justifiably suffers the consequence that there is no limitation period running; and if it never publishes, there is effectively no limitation period at all. Mr Knox says that this is the purposive construction, bearing in mind the Remedies Directive, which provides (he contends) that time cannot run until 10 days after a publication. Although hardly consistent with any principle of rapidity, Mr Knox submits that this is the true construction of the Regulation, given that the illegal making of direct awards is the most serious breach of procurement law (as e.g. recital (13) to the Remedies Directive says), and it is entirely appropriate that if an authority wants to avoid the effective absence of a limitation period, they should publish their wrongdoing and not conceal it.

I do not accept this, or that this is the rationale and purpose of Regulation 92(3)(c). Much was made of the point by the Claimant that one must construe the PCR in light of the Remedies Directive, and the minimum standards it requires, and adopt a purposive approach (see e.g. Coulson LJ in IGT [57-58] and [60]). I agree and have this point well in mind throughout this judgment, but doing so does not support the Claimant’s argument.

Where a decision has not been published (and assuming that it should have been been), but instead has been concealed, the authority may well find that time is not running against it. But that is because absent publication, a claimant may not have the necessary knowledge that grounds for a procurement claim have arisen, under Regulation 92(2). However, a claimant might well have such knowledge independently, without a publication having been made (for example, from a whistleblower); consistent with the principle of rapidity, there is no reason at all why such a claimant should not commence such a claim within the 30 days; and every reason why it should. That to my mind is a conclusion which is consistent with the purposes and intentions of the Remedies Directive. If it had been intended to provide that there must be a publication in all cases of unlawfulness before time ran or could expire, the Remedies Directive would have expressed this stark rule in terms.

“Published” is not defined, but I see no reason not to give it its ordinary meaning; and, given its context, a meaning which is different from a specific notification to a particular economic operator. Namely, a notification of a decision in a form intended for public information.

If there were a publication, the obvious candidate would be the entry on the Contracts Finder website, which has a “Published Date” of 3 July 2023, as Ms Heard for the Defendants contended.

The Claimant was keen to say that the Contracts Finder notification was not a publication, and certainly not a publication of a direct award to Assist. That was because, if it had been, the minimum time limit under Regulation 92(2)(c) would have expired in July 2023.

The Claimant’s argument for why this did not amount to a publication may be summarised as follows. An application for summary disposal on the grounds of limitation must assume in a claimant’s favour that breach has been made out. That much is uncontroversial. There was therefore an unlawful decision. It then submits:

The Defendants accept there was an error (the contract award value was wrongly stated to be zero in one part of the notification, although stated as between £1m and £2m in another part); they say that there was no need to refer to Assist, the sub-contractor since the contract was formally awarded to the Second Defendant as main contractor and properly notified as such (they point out that the Claimant was familiar with the Framework Agreement having itself been appointed under it); they also deny that the formality requirements of Annex V fall to be written into the requirement for ‘publication’ in Regulation 92(3)(c), as Mr Knox submitted.

My conclusion on this aspect is as follows. First, I have already decided that a publication was required for Regulation 92(3)(c) to be engaged. If as the Claimant contends, there was no publication, for any of the reasons it suggests, it obtains no assistance from any minimum period under this Regulation, which does not apply.

Secondly, if it were necessary to go further, I would not accept that there was no publication for the purposes of the Regulation.

Where an authority considers (albeit as the Court may later determine, wrongly) that its decision was a call-off agreement within the limits of a Framework Agreement, and publishes it as such, as here, it is in my judgment fallacious to suggest it has not given public notification of its decision. Whether its decision was lawful (in this case, whether the award was in fact within or outside the framework limits) will be for a Court to determine in due course. There would be no need for such a determination, if the Claimant is right that the authority must publish at the outset, what is in effect, a confessional admission (or at least a statement of fact contrary to its own position), that the award was outside the limits of the framework, before time can even run. This does not make any sense. The Claimant’s case is not supported by the wording of the Regulation (which says no such thing). The Regulation presupposes, simply, a publication of the decision which is under challenge.

Even if the Claimant is right to say that the publication was defective in the respects identified, that does not mean it was a nullity, such that it can be regarded as not having occurred at all. It would simply be a defective or inadequate notice. I was referred to no authority which would justify a conclusion that it was a nullity, and the mere fact that a notice is defective does not by itself mean that there was no notice at all. Nor am I persuaded in any case that any (if any) applicable notice requirements of Annex V must be read into the requirement of publication. The Regulation does not say this; and to do so, would mean that the slightest error of formality would, on the Claimant’s case, mean that there was, in effect, no limitation period. Again, the Claimant’s submissions in this respect are not consistent with the principle of rapidity in procurement law or the fundamental general rule that time runs from knowledge.

The attempt to soften the consequence of its argument by relying on Regulation 92(5), to answer the point that there would in effect be no limitation period on the Claimant’s case, is misconceived. That regulation does not prescribe the limitation period, but rather provides a fetter on the Court’s ability to extend time. Similarly, the attempt to find refuge in the general limitation period applicable to breach of statutory duty or, as Mr Knox put it, to an action on a specialty. The whole point about Regulation 92 is that there is a distinct limitation regime for procurement claims.

That is not to say that any defects in a publication are not without any significance. Defects in a publication – e.g. the absence of reference to material information – might well be highly relevant in principle to the question whether and when a claimant had the necessary knowledge to start proceedings, under Regulation 92(2). This was in fact the essential point made in the alternative by the Claimant, at paragraph 29 of Mr Lobo’s first witness statement. For example, if a publication had failed to include (or misrepresented) matters which a claimant would have needed to know before it could be said to have known that grounds for a claim had arisen. Or if the publication was so defective that a reader of the Contracts Finder would fail to realise that the contract award affected it.

In this case, though, the Claimant says it was unaware of the Contracts Finder entry and had not considered it before it brought proceedings, and if that is right (which must be assumed for present purposes) plainly therefore nothing about the entry (defective or not) impacted on whether it considered it had grounds to sue. By the same token, the Defendants do not rely on Contracts Finder at least on this application, in support of their contention that the Claimants had knowledge.

If necessary, therefore, I would consider that the Contracts Finder entry amounted to a public notification, i.e. a publication of the decision made by the Defendants, within the Regulation. It is common ground that it was, in fact and objectively, concerned with what has been termed the Assist Contract, i.e. a contract for fire warden services awarded in June 2023 to the Second Defendant as main contractor. I would not have found that the 18 September letter was a publication, the Claimant’s fall-back case, since that was a private communication.

The consequence in my judgment is that the Claimant must bring its procurement claim within the time required by Regulation 92(2), since either there was no publication (as the Claimant contends) with the consequence that, even if other aspects of the gateway were established, Regulation 92(3) does not apply. Or, alternatively, any minimum period applicable by reason of Regulation 92(3)(c) would have expired in July 2023. The Claimant is not prejudiced by that expiry, or the alleged inadequacy of any publication, or even the alleged absence of publication, since time depends on its own knowledge, actual or constructive.