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Feel You Have Been Unfairly Denied a Public Contract? You Need to Act Fast

If you feel that you have been unfairly denied a public contract you need to act fast and should seek legal advice straight away. A charity found that out to its cost when it lodged a challenge to the outcome of a tendering process two days too late.

The charity had for many years provided services to people with learning difficulties under contract with a local authority, its sole client. After the council conducted an online competition, the charity tendered for five contracts. Although it was in each case the incumbent provider, it failed to win any of them.

In challenging that outcome under the Public Contracts Regulations 2015, the charity argued, amongst other things, that the tendering process breached the transparency principle and that bidders had not been treated equally. The council argued that the charity’s claim should be struck out, having been brought too late.

Ruling on the case, the High Court noted that Regulation 92 of the Regulations requires that such challenges must be brought within 30 days, beginning with the date on which an aggrieved economic operator first knew or ought to have known that grounds for starting proceedings had arisen. That time limit may be extended if there is good reason for doing so, but not beyond three months. The charity had lodged its claim two days after the 30-day time limit expired.

In seeking an extension of time, the charity said that the delay had arisen from a mistake. A failure to win the contracts would have a devastating impact on its ability to provide its services and even to survive. The Court noted, however, that judges have repeatedly emphasised that the 30-day time limit should be observed and only extended if there is a good reason for doing so.

The brevity of the delay was not, in itself, a sufficient reason to extend time. If a short delay of a day or two would be a reason to grant an extension of time, then why not three days, and then why not four days and so on. The merits of the charity’s case were not relevant to the issue of delay and an extension of time would cause real prejudice to the council and the administration of its business. The Court refused to extend time and the charity’s claim was struck out.

Published in
28 January 2022
Last Updated
21 February 2022