Clarification on the Time Limit for Bringing Procurement Challenges
Tuesday, 16 February 2010
On 28 January 2010 the Court of Justice of the European Union (“CJEU”) handed down its judgment in Uniplex (UK) Ltd v NHS Business Services Authority (C-406/08). The judgment concerns the date from which the period for bringing a procurement challenge starts to run.
Under Regulation 47(7)(b) of the Public Contracts Regulations 2006 (the “Regulations”), proceedings must be brought "promptly and in any event within three months from the date when grounds for the bringing of the proceedings first
The CJEU considered two questions:
- Whether the limitation period runs from the date of the alleged infringement or from the date on which the claimant knew, or ought to have known, of that infringement; and
- How the national law requirement that proceedings be brought promptly should be interpreted and whether national courts have discretion to extend the national limitation period for the bringing of such proceedings.
The CJEU held that:
- The period for bringing proceedings seeking to have an infringement of the Regulations established or to obtain damages for the infringement of the Regulations should start to run from the date upon which the claimant knew, or ought to have known, of that infringement. The CJEU provided that it is only once a claimant “has been informed of the reasons for its elimination from the public procurement procedure that it may come to an informed view as to whether there has been an infringement.”
- EU law precludes a national provision allowing a national court to dismiss proceedings for being out of time on the basis that those proceedings must be brought promptly as this “gives rise to uncertainty” and “does not ensure effective transposition” of the EU Remedies Directive. As for extending the limitation period, the CJEU held that a national court must exercise its discretion to extend the limitation period in such a manner as to ensure that a claimant has a period equivalent to that which it would have had if the period provided for by national legislation had run from the date on which the claimant knew, or ought to have known, of the infringement of the public procurement rules.
The judgment gives unsuccessful applicants who wish to make a claim for infringement of the Regulations more certainty. Contracting authorities should ensure that they provide unsuccessful applicants with details of the reasons for their elimination from a public procurement procedure at the date that they notify them of the decision, such that the unsuccessful applicants know, or ought to know, whether there has been any infringement which may form the subject matter of proceedings. Where contracting authorities fail to do so, the time frame for initiating proceedings may be extended.
For further information on the Uniplex case, or any other Public Procurement queries you may have, please contact:
Kris Kelliher
Solicitor
kris.kelliher@devonshires.co.uk
Robert Winrow
Solicitor
robert.winrow@devonshires.co.uk
Paul Buckland
Partner
paul.buckland@devonshires.co.uk
