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

PROCUREMENT LAW

I should start by setting out the law so far as relevant to the Application.

Directive 89/665/EEC, as amended in 2007 by Directive 2007/66/EC, (“the Remedies Directive”) concerns various minimum requirements as regards legal review procedures and remedies for breaches of procurement law in respect of public works contracts. It applies to public supply and public works contracts falling within the directive containing the substantive regulations concerning public procurement, which was Directive 2004/18/EC but is now to be read as a reference to Directive 2014/24/EU. Such contracts include framework agreements.

The Remedies Directive, in its amended form of 2007, was implemented in the UK by the Public Contracts (Amendment) Regulations 2009. The PCR of 2015 implemented the new procurement directive to which I have referred (2014/24/EU), and following the revocation of the 2009 Amendment Regulations, re-enacted the relevant provisions concerning remedies as they then stood.

Regulation 92(2) and 92(3) of the PCR therefore contain the regulations on limitation which seek to implement the Remedies Directive, in the context of which they must be construed. For the primacy of the Remedies Directive when interpreting the Regulations, see International Game Technology PLC v The Gambling Commission [2023] EWHC 1961 TCC [2024] PTSR 65 (Coulson LJ) (a decision under the Concession Contracts Regulations 2016).

Article 1 of the Remedies Directive required Member States to ensure that decisions taken by contracting authorities could be reviewed effectively and, in particular, as rapidly as possible in accordance with the conditions set out in Articles 2 to 2f.

The principle of rapidity is a key part of procurement law, which underpins the regulations on limitation. It is a useful principle to have in mind when considering whether a party’s contentions on limitation are, or are not, consistent with it.

Article 2(1) required Member States to ensure that review procedures were put in place and included a power to award damages; and to “either set aside or ensure the setting aside of decisions taken unlawfully, including the removal of discriminatory technical, economic or financial specifications in the invitation to tender, the contract documents or in any other document relating to the contract award procedure” (Article 2(1)(b)). The Claimant does not seek by its procurement claim to set aside the award of the Assist Contract, but this provision is relevant to its case on the true construction of Regulation 92(3)(c), as will be seen below.

An important aspect of the amendments made to the Remedies Directive in 2007 was to require a standstill period between the time a decision was made to award a contract and that contract being concluded. The purpose of this was explained in the recitals to the Remedies Directive, see e.g. (4) and (6).

The new Article 2a(2) provided that:

The communication must be accompanied by a summary of the relevant reasons for the decision.

It can therefore be seen that the standstill period depends on whether the contract award decision was sent to the tenderers and candidates by fax/electronically or not. If it was, then the period is at least 10 days after the date of sending; if not electronic, then the period is at least 15 days after sending or 10 days after receipt. (It is plain in this context that the date of sending, or receipt if applicable, is not included in the calculation of the specified days.)

The Claimant’s procurement claim does not raise any issue of standstill. However, this provision has a resonance in Article 2c, which provides for time limits.

Article 2c of the Remedies Directive provides as follows (emphasis added):

I have added [A], [B] and [C] to the above text for ease of reference.

Article 2c does not prescribe the limitation period for procurement claims as such, which is a matter for the national court. It does however require minimum periods in certain situations. This is apparent from Article 2f(2):

Where there has been a competitive exercise involving tenderers and candidates, Article 2c provides that the limitation period must be at least 10 or 15 days, depending on the circumstances: see [A] and [B] above in the text above. The time limits mirror the standstill provisions in Article 2a(2). However, both the Claimant and the Defendants now agree that these time limits do not apply, because the award of the Assist Contract did not involve a competitive process in respect of which tenderers/candidates and the Claimant were involved.

The Claimant instead relies on the final sentence of Article 2c [C]. It says that its application for review, i.e. its claim for damages, concerns a decision “referred to in Article 2(1)(b)”. It interprets that reference as being to any unlawful decision, irrespective of whether a claimant is seeking to set it aside. I shall come back to that when looking at the PCR and examining how that aspect of Article 2c was implemented.

Regulation 92 sets out the general time limit for starting proceedings, where (as here) those proceedings do not seek a declaration of ineffectiveness. The basic rule is found in Regulation 92(2): proceedings must be started within 30 days beginning with the date when the claimant first knew or ought to have known that grounds for starting the proceedings had arisen. I have set out the text in paragraph 19 above.

The basic rule in Regulation 92(2) is expressly subject to Regulation 92(3) to (5).

Sub-paragraphs (4) and (5) provide that the Court may extend time where there is a good reason for doing so, but not beyond 3 months after the date of knowledge under Regulation 92(2). The Claimant, at times, suggested that sub-paragraphs (4) and (5) were provisions which prescribed the limitation period. In my judgment, that is not so. The limitation period is as set out in Regulation 92(2), to be read subject to sub-paragraph (3).

Regulation 92(3) provides:

This scheme reflects the Remedies Directive. As Article 2f(2) of the Remedies Directive makes plain, the limitation period is a matter for the national court (this is Regulation 92(2)), subject to the minimum time periods identified in Article 2c. Regulation 92(3) is designed to implement the requirement for those minimum periods.