Public Procurement Deadlines – Difference between Standstill and Limitation – Court Refuses to Extend Limitation Period

Steven Mather

4 years ago

The world of Public Procurement can be a tricky one. Procurement is a means by which a public body (say the NHS or a council) tender for certain works to be carried out. Private companies submit a tender bid, and the public body considers it and makes a decision on who to appoint. Simple right? But sadly, so many public bodies get things wrong – they make decisions without reason or award points (or don’t) for arbitrary reasons, and when this happens, the losing bidder can potentially challenge the decision as being unlawful.

The Public Contracts Regulations 2015 apply generally to public procurement and they provide strict time limits. The basic rule is claims must be issued within 30 days of the decision and that rule is set out at regulation 92 of the Public Contracts Regulations 2015 (“PCR 2015”). There are some exceptions: up to 6 months in limited circumstances for declarations of ineffectiveness, and up to 3 months where the Court considers that there is a ‘good reason’ for doing so. There is no list of what constitutes ‘good reason’ and it is for the Court to determine. Case law has shown that Courts generally consider ‘good reason’ to be an external factor that has prevented the claimant from making a claim, and as such it is rarely exercised.

Meanwhile, when a decision is made by a public body that is challenged, there is an automatic 10-day standstill period applied which prevents the public body from commencing the contract with the winning bidder. This standstill period can be extended but should not be confused with the limitation period.

In a recent High Court case (Access for Living v London Borough of Lewisham [2021] EWHC 3498 (TCC)), the Judge refused to allow an extension of time to issue proceedings brought under the Public Contracts Regulations 2015 (SI 2015/102) (PCR 2015) and struck out the claim.

The claimant (AFL) was a charity providing services to people with learning disabilities solely on behalf of the defendant council (LBL). AFL had unsuccessfully bid in a mini competition conducted by LBL. On 7 February 2020, LBL stated in its decision notice that AFL’s bids had been unsuccessful as it had failed to provide sufficient detail around one of the prescribed method statements concerning “support hours” (MS5).

Following the decision notice, a ten-day automatic standstill period applied (in accordance with regulation 86 of the PCR 2015), preventing LBL from entering into new contracts during this time. Following several requests from AFL, LBL ultimately agreed to extend the standstill period to 13 March 2020.

AFL issued proceedings under regulation 91 of the PCR 2015 on 11 March 2020 (32 days from the date of the decision notice) alleging that LBL had not evaluated its tenders in accordance with MS5 and the method statement itself was open to interpretation. LBL argued that AFL’s claim had been made out of time in breach of regulation 92 of the PCR 2015 and that the court had no power to extend time under regulation 92(5) as more than three months had passed.

The High Court refused AFL’s application for an extension of time to issue proceedings and struck out the claim.

This case provides useful clarity around how standstill periods and limitation periods interact and also summarises existing case law on what will be considered a “good reason” for extending time limits.