The importance of Limitation Periods in Procurement Litigation

In a recent case, in which this firm represented the successful party, the High Court of Northern Ireland examined the question of whether the plaintiff’s claim was time-barred pursuant to Regulation 92 of the Public Contract Regulations 2015 (“PCR”) in relation to a procurement law dispute. The Court found that the claim was time-barred and awarded judgment in the favour of the Defendant. The decision of Huddleston J clearly highlighted the importance of carefully assessing and checking limitation periods in procurement actions.

Background and Timeline

Legal proceedings were issued almost 14 months after the contract was awarded to the successful tenderer. As outlined in Regulation 92 of the PCR, proceedings must be issued and served within 30 days of knowledge that there were grounds for a legal challenge.

The plaintiff argued that it only possessed a ‘suspicion’, and therefore was not required to issue proceedings within the 30-day time limit. It is clear however, that full knowledge is not required in order for the 30-day time limit to begin running. Huddleston J referred to the case of Mermec in his decision.

In the case of Mermec UK Ltd v Network Rail Infrastructure Ltd [2011] EWHC 1847, Akenhead J stated that ‘the fact that Mermec could not be certain about all the facts…does not mean that time does not start running.’

The court determined that the plaintiff demonstrated possessing more than ‘mere knowledge’ of grounds for bringing legal proceedings to initiate a claim and was therefore time-barred from bringing a claim.

The Importance of checking Limitation Periods

From the case law it is clear that timing is paramount when it comes to issuing a procurement claim. It is generally accepted that 30 days from the date of awareness of a potential claim is the limitation period for when a claim under the PCR should be made.

Awareness of a potential challenge will usually become apparent upon receipt of the contract award notice informing you that you have been unsuccessful. However, it is important to remember that the 30-day time period begins to run as soon as you are aware of a potential challenge. Therefore, if it is apparent before you receive such communications that a challenge may be evident, legal proceedings should be issued within 30 days of your knowledge of a potential challenge.

The 30-day limitation rule is difficult to extend and can only be done in exceptional circumstances, where it can be extended for a period of up to 3 months.

Concluding Comments

It is clear from the case law that good practice is to seek legal advice promptly if a potential challenger suspects it has been treated unfairly or has a legal challenge to the award of a contract under the PCR. The 30-day time limit is applied strictly and the importance of being in time should not be underestimated.

If you would like any further information or advice on these issues, please contact Lucy Clarke from the Litigation and Dispute Resolution team.

*This information is for guidance purposes only and does not constitute, nor should be regarded, as a substitute for taking legal advice that is tailored to your circumstances.