High Court Emphasises Importance of Strict Time Limits for Procurement Challenges

01 Aug 2012

Turning Point Limited v Norfolk County Council [2012] EWHC 2121 (TCC)

Mr Justice Akenhead struck out a claim brought by Turning Point Limited against Norfolk County Council in relation to a breach of the procurement regulations in its entirety. Part of the claim was struck out on the basis that proceedings were brought out of time and there was no basis for an extension to be granted. The other part, which related to a suggested obligation on the Defendant to seek clarification of a notation on the face of the Claimant’s tender, was struck out on the basis that there were no real prospects of success.

The claim alleged that the Council had breached procurement law principles and implied contractual terms by failing to provide what it said was sufficient TUPE and pensions-related information to tenderers. The Claimant also challenged the Defendant’s exclusion of the Claimant’s bid on the basis that it had qualified its bid by asserting the right to re-open discussions with the Council on the issue of redundancy costs in certain circumstances.

After considering recent case law, in particular Sita UK LTd v Manchester Waste Disposal Authority [2011] EWCA Civ 156 and Mermec Ltd v Network Rail Infrastructure Ltd [2011] EWJC 1847 (TCC), Mr Justice Akenhead in concluding that the Claimant should not have an extension of time, rejected an argument put forward by the Claimant that an extension sought of 14 days was a short period of time, emphasising that that cannot in itself be a good reason. The legislature had stipulated 30 days, not “30 days plus a reasonable proportionate and short period”.  Any good reason for extension of time would usually be something which was beyond the control of the Claimant, including “illness or detention of relevant members of the tendering team”.

Further, there was no requirement on the Defendant in this case to seek clarification of a qualification placed on the face of the Claimant’s bid as to price, which qualification was expressly not permitted by the ITT. The statement was clearly a qualification and nothing about it suggested that it was  a clear and obvious error of the kind referred to in Tideland Signal Limited v Commission of the European Communities [2002] ECR II-3781.

Finally, the Court, referring to the recent line of authorities strictly confining the circumstances in which implied contractual terms might arise in the context of public procurement, concluded there was no prospect of success of the Claimant establishing that an implied obligation arose which, inter alia, required the Defendant to comply with certain general principles.

Elisa Holmes represented Norfolk County Council.