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

THE DISPUTE CONCERNING REGULATION 92(3)

There are a number of preliminary points which arise.

First, Regulation 92(3) does not in my judgment prescribe or identify the limitation period as such: it merely provides that proceedings need not be started before the end of certain minimum periods, if those are applicable.

It was, at times, suggested by the Claimant in argument that, if the proceedings fell within Regulation 92(3), then the basic rule in Regulation 92(2) did not apply or, as it was sometimes put, ‘time did not run’. The more accurate reading of these provisions, in my judgment, is that the 30 day period does apply to each of the situations in sub-paragraphs (a)-(c); time always runs from knowledge; but there are in effect certain minimum time periods and proceedings do not need to be started before the end of them. Regulation 92(3) does not necessarily mean that proceedings must be commenced at the end of any applicable minimum period. At that point, a claimant may not have the relevant knowledge, or 30 days of knowledge may not have elapsed. Or more than 30 days may have elapsed. In other words, the limitation period is still to be found in Regulation 92(2), subject to the minimum periods in sub-paragraph (3).

Secondly, just as it might be said that the Defendants’ case has developed since the Application was issued, by virtue of the July case, it is also apparent that the same is true as regards the Claimant’s response. Mr Barrett KC, who appeared for the Defendants, is right to point out that what has now become the Claimant’s primary argument, concerning Regulation 92(3), was not its first thought. If the point is technically right, it is none the worse for being raised late; but it is perfectly fair to note, on the Claimant’s own evidence, that its view at the time, based on legal advice, was that the 30 day period did apply.

The Claimant did seek in its written evidence to rely on Regulation 92(3)(a) and (b). However, this was disavowed in its skeleton argument. As both parties accepted, at least by the time of the hearing, Regulation 92(3) (a) and (b) are inapplicable, because they are concerned with competitive situations involving a claimant, where candidates and tenderers seek to challenge a procurement, reflecting the passages within Article 2c of the Remedies Directive at [A] and [B]. The minimum time limits reflect the standstill provisions applicable in those situations, as implemented by Regulation 87(2) and (3) of the PCR (see paragraphs 34-38 above). The Claimant did not have the status of either tenderer or candidate. This was not an award by competition but (purportedly) a call-off award under a framework agreement, which was not subject to the mandatory standstill: see Regulation 86(5)(c) of the PCR.

The Claimant instead relies on Regulation 92(3)(c), which it says seeks to implement the time limit at [C] of Article 2c. For ease of reference, I set out both passages again:

The words in Article 2c of the Remedies Directive “concerning decisions referred to in Article 2(1)(b) that are not subject to a specific notification”, followed by a reference to the publication of the decision, are seemingly implemented, albeit different language is used, through the Regulation’s reference to “where sub-paragraphs (a) and (b) above do not apply but the decision is published”. It was not suggested that the different formulations had different meanings, or that the Regulation did not properly implement the Remedies Directive in this respect.

Article 2(1)(b) is the provision that requires Member States to ensure that there is a review procedure for ensuring that decisions “taken unlawfully” can be set aside: see paragraph 33 above. Mr Knox KC, appearing for the Claimant, submits that, although that is the context of the cross-reference, “decisions referred to in Article 2(1)(b)” simply means any decision taken unlawfully. An unlawful decision can occur both within and outside the competitive context of sub-paragraphs (a) and (b). Regulation 92(3)(c) therefore can apply where there is an unlawful decision, falling outside the competitive context of sub-paragraphs (a) and (b).

The Defendants submit that Regulation 92(3) is not applicable at all, on the basis that it is concerned only with competitive situations, and that the situation “where sub-paragraphs (a) and (b) above do not apply” are still concerned with competitive tenderer/candidate situations, but ones where there has been no communication with the claimant, electronic or otherwise, but there has instead been a publication.

If that is wrong, and if Regulation 92(3)(c) can apply in the non-competitive situation, the Defendants submit (by reference to the wording in [C] of Article 2c) that there was a “specific notification” to the Claimant in this case, by the 18 September letter, and therefore sub-paragraph (c) does not apply for that reason. The basic rule in Regulation 92(2) therefore applies: time runs from knowledge (and they contend the Claimant had knowledge by reason of the 18 September letter). The Claimant does not accept this letter was a “specific notification”, as that phrase (and the implementing Regulation) is properly to be construed.

Further, and in any event, the Defendants submit that Regulation 92(3)(c) cannot apply where there has been no publication. Since the Claimant alleges that there was no publication of the decision to award the Assist Contract, on its own case the Regulation cannot apply.

The Claimant’s case is indeed that there has been no publication but submits that there should have been one; and the Defendants cannot get round Regulation 92(2)(c) by failing to publish what they should have done. Even where a claimant might have the necessary knowledge that grounds for a procurement claim had arisen (pursuant to Regulation 92(2)), Regulation 92(3)(c) has the effect of preventing time from running, or at least ever expiring, if there was no publication when there should have been one; or where there was a purported publication, but one which was inadequate or incorrect in some way.

The Defendants would contend (if necessary) that there was, in fact, a publication within the meaning of the Regulation of the decision under challenge, which occurred on 3 July 2023 by way of the entry on the Contracts Finder (see paragraph 13.2 above). Alternatively, there was a publication by the 18 September letter. This is the argument advanced in paragraph 7 of Ms Heard’s second witness statement. Accordingly, any reliance on Regulation 92(2)(c) does not assist the Claimant. In either case, any applicable minimum 10 day period under the Regulation expired before the Claim Form was issued; and, in the case of the Contracts Finder publication, well before then.

The Claimant denies that the Contract Finder entry amounted to a publication, within the meaning of the Regulation. The 30 day period (under Regulation 92(2)) did not and does not begin to run until the unlawful decision was published. That has never occurred. The procurement claim was therefore started before time started running. If that seems an odd position, that is simply the result of the rules. In answer to the point that his submissions had the effect that there was no limitation period at all, or one which would likely never expire, Mr Knox suggested that the long stop (in Regulation 92(5)) would still apply or the ordinary limitation period for breach of statutory duty would provide a deadline.