Court of Justice rules on national time limits for bringing public procurement challenges

On 28 January 2010, the Court of Justice of the European Union (formerly the European Court of Justice) handed down its judgment in Case C-406/08 Uniplex.  This judgment will affect fundamentally the way in which challenges to public procurement processes are made in the United Kingdom.

The case concerned a dispute between Uniplex (UK) Ltd (“Uniplex”) and the NHS Business Services Authority (“NHS”) concerning the conclusion of a framework agreement for the supply of haemostats.

Uniplex had submitted its tender on 18 July 2007.  On 22 November, NHS sent a letter to Uniplex informing it that NHS had decided to conclude a framework agreement with three tenderers, not including Uniplex.  It told Uniplex that it had received the lowest marks of all tenderers which had been invited to submit.  The letter set out the award criteria, with corresponding weighting, and indicated the names of the successful tenderers, the range of successful scores and Uniplex’s evaluated score.  The letter also informed Uniplex of its right to challenge the decision, of the mandatory 10-day standstill period, and of Uniplex’s entitlement to seek an additional debriefing.

Uniplex requested a debriefing by email on 23 November 2007.  NHS replied on 13 December 2007 providing details of its approach to the evaluation of the award criteria for the successful tenders in relation to Uniplex’s tender.

On 28 January 2008, Uniplex sent NHS a letter before action alleging a number of breaches of the 2006 Regulations.  In that letter, Uniplex stated that it considered that time did not start to run for the bringing of proceedings until 13 December 2007.  In subsequent correspondence, NHS made clear its view that time had started to run on 22 November 2007, but Uniplex only issued proceedings on 12 March 2008.  Uniplex sought, first, a declaration that NHS had breached the applicable public procurement rules and, secondly, damages.

The High Court made a reference to the Court of Justice concerning the date upon which time should start to run for the bringing of proceedings and how the national court should apply (i) the requirement for proceedings to be brought promptly, and (ii) any discretion as to extending the national limitation period for the bringing of such proceedings.

The Court of Justice held:

• First, that the period for bringing proceedings seeking to have an infringement of the public procurement rules established or to obtain damages for the infringement of those rules should start to run from the date on which the claimant knew, or ought to have known, of that infringement.
• Second, that the provision in the 2006 Regulations which requires proceedings to be brought “promptly” is precluded by Directive 89/665.
• Third, Directive 89/665 requires the national court, by virtue of the discretion conferred on it, to extend the limitation period in such a manner as to ensure that the claimant has a period equivalent to that which it would have had if the period provided for by the applicable 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. If the national provisions do not lend themselves to an interpretation which accords with Directive 89/665, the national court must refrain from applying them, in order to apply Community law fully and to protect the rights conferred thereby on individuals.

Kassie Smith acted for the United Kingdom in the proceedings before the Court of Justice of the European Union.

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