Delay could be fatal for bidders in the tendering game28/08/19
In Royal Cornwall Hospitals NHS Trust v Cornwall Council  EWHC 2211 (TCC) the Technology and Construction Court has again confirmed that it is very risky for a bidder to delay bringing a claim under the Public Contracts Regulations 2015. Taking time to investigate and consult with other providers to seek to validate its claim was not a “good reason” for the 30 day limitation period on a procurement challenge to be extended.
Investigation is not a “good reason” to extend the 30 day time limit
The Royal Cornwall Hospitals NHS Trust’s complaint was that it was impossible for the winning bidder to provide the service within Cornwall Council’s financial envelope (there was a cap of £2.5m in the tender documents). On this basis the Trust withdrew its bid.
Instead of issuing a claim in the Courts within the 30 day limitation period, the Trust decided to investigate and consult more widely with other providers to seek to validate its conclusions regarding the viability of the service.
The Court decided that the investigation was not a good reason to extend the 30 day time limit, and that the claim was time barred.
We previously commented on the Court's view of “good reasons” for extending the limitation period here.
No obligation of transparency towards bidder who withdraws
The Court also concluded that there was no obligation on the Council to provide the Trust with certain requested information about the conduct of the procurement after the Trust had decided not to participate. The duty of transparency applied only to those bidders who were participating in the procurement.
Lesson for bidders
If you suspect that something is wrong with a procurement process, do not delay in seeking advice and, if warranted, starting a claim. If you need to carry out further investigations in relation to your claim, do so quickly and well within the 30 day limitation period, as it is very unlikely to be extended by the courts.
How Capsticks can help
If you have concerns about a procurement process, we can provide urgent advice on merits and strategy so that you are able to make an informed decision about whether or not to start a claim within the limitation period.
Please contact Dylan Young or Jade Carey for more information.