The time limits for bringing challenges to public procurement decisions are typically short and the courts have explained that given the nature of public procurement decisions, a “comparatively strict approach to time limits” is appropriate (Dekra Éireann Teoranta v Minister for the Environment and Local Government [2003] 2 IR 270 at 304, Fennelly J). Yet, the cases show that circumstances will also arise where an extension of time is justified and this can raise issues seen in other public law cases on time limits, such as questions of prejudice, public interest etc. Ultimately, the resolution of questions concerning time limits tends to be highly fact-dependent.
Although the purpose of the standstill period is to give disappointed tenderers an opportunity to bring a challenge, the time limit for bringing a challenge is often longer than the standstill period. However, if a challenge is not brought before a contract is concluded, this can limit the remedies that are likely to be available, with a challenger potentially left to a remedy in damages. Consequently, from a challengers perspective, it will usually be important to ensure that a challenge is instituted before any contract is concluded.
For challenges against procurement decisions of the EU institutions, the time limit for bringing an action for annulment before the General Court is “two months of the publication of the measure, or of its notification to the plaintiff, or, in the absence thereof, of the day on which it came to the knowledge of the latter, as the case may be” (Article 263 TFEU). The standstill period is 10 days (where there is electronic communication) or 15 days (Article 178(3) of Regulation 2024/2509).
Under the UK Procurement Act 2023, the general time limit for procurement actions is “30 days beginning with the day on which the supplier first knew, or ought to have known, about the circumstances giving rise to the claim” (Section 106(2)). The same time limit applies to applications to set aside a contract (Section 106(1)(a)). There is a 6-month time limit where a contract has been concluded or modified (Section 106(1)(b)). The High Court can extend time “if it considers there to be a good reason for doing so” (Section 106(3)). The standstill period is “eight working days beginning with the day on which a contract award notice is published in respect of the contract” (Section 51(2)).
In Ireland, the general time limit in the classic regime is “30 calendar days after the applicant was notified of the decision, or knew or ought to have known of the infringement alleged” (Reg 7(2) of SI 130/2010). There are different time limits for applications for declarations of ineffectiveness of 30 days/6 months (Reg 7(3), 7(6) of SI 130/2010). The time limit can be extended where the High Court “considers that there is good reason to do so” (Order 84A, Rule 4(2) of the Rules of the Superior Courts). The standstill period is 4 days (where communication is electronic) or 16 days (Reg 5(4) of SI 130/2010).
-
Ireland
-
Newbridge Tyre and Battery Co Limited T/A Fleet Service Centre v Commissioner of An Garda Síochána [2018] IEHC 365
Region: Ireland
-
Glenman Corporation Ltd v Galway City Council [2023] IEHC 336
Region: Ireland
-
LOC8 Code Limited v The Department of Environment Climate and Communications [2024] IECA 235
Region: Ireland
Although advanced as a claim in conspiracy, the substance of the case was a claim for breach of the public procurement rules and was therefore brought years out of time and would be struck out
Allen J (upholding the High Court judgment of Barret J – [2023] IEHC 752)
-
Dekra Éireann Teoranta v Minister for the Environment and Local Government [2003] 2 IR 270
Region: Ireland
Where there was no explanation or justification for bringing proceedings one month outside a three month time limit (at the time, the limit was, "at the earliest opportunity and in any event within three months" of the grounds arising), no extension would of time would be granted
Denham J
In this specialist area of judicial review there is a clear policy underlying the law. The policy includes the requirement that an application for review of a decision to award a public contract shall be made at the earliest opportunity. There is a degree of urgency required in such applications. The applicant should move rapidly. The requirement of a speedy application is partially based on the prejudice to the parties and the State in delayed proceedings. Also, there is the concept that the common good is best served by rapid proceedings. The necessary balance to protect fair procedures is met in the saver that the court may extend time for such application for good reason.
Thus the court has a discretion to extend time within which an application may be brought for judicial review of public contracts.
There was an onus on the applicant to explain the delay and to give good reason to extend the time within which the application may be brought. The applicant did not explain the whole delay. It explained part of the delay. In addition, no good reason was afforded as to why time should be extended.
On the facts of this case not only is there no explanation for a considerable part of the delay but also there is no reason, good or otherwise, rendered for part of the delay or for an extension of time. On the facts, there is a gap from the 5th January, to the 24th February, 1999.
The term “good reason” in O 84, r 21 of the Rules of the Superior Courts 1986, was considered by Costello J in O’Donnell v Dun Laoghaire Corporation [1991] ILRM 301. He stated at p 315:-
“The phrase ‘good reasons’ is one of wide import which it would be futile to attempt to define precisely. However, in considering whether or not there are good reasons for extending the time I think it is clear that the test must be an objective one and the court should not extend the time merely because an aggrieved plaintiff believed that he or she was justified in delaying the institution of proceedings. What the plaintiff has to show (and I think the onus under O 84, r 21 is on the plaintiff) is that there are reasons which both explain the delay and afford a justifiable excuse for the delay. There may be cases, for example where third parties had acquired rights under an administrative decision which is later challenged in a delayed action. Although the aggrieved plaintiff may be able to establish a reasonable explanation for the delay the court might well conclude that this explanation did not afford a good reason for extending the time because to do so would interfere unfairly with the acquired rights (The State (Cussen) v Brennan [1981] IR 181).
Or again, the delay may unfairly prejudice the rights and interests of the public authority which had made the ultra vires decision in which event there would not be a good reason for extending the time, or a plaintiff may acquiesce in the situation arising from the ultra vires decision he later challenges or the delay may have amounted to a waiver of his right to challenge it and so the court could not conclude that there were good reasons for excusing the delay in initiating the proceedings.”
I am satisfied that this analysis is applicable to the term “good reason” in O 84A, r 4. I apply the test to this case. Thus, the applicant had to show that there were reasons which both explained the delay and offered a justifiable excuse. The public contract in issue involved significant liabilities, obligations and expenditure which may raise important factors for a court. The justice of the situation may raise issues such as prejudice to the notice party arising from the expenditure and other undertakings in the contract.
Also, I am satisfied, concepts of the public good may be relevant as being prejudiced by protracted and delayed judicial review. The common good could have a heavy weighting in reviews of this type, reflecting the requirement on any applicant to move rapidly.
Fennelly J
The court must always have regard to the circumstances of the particular case and to the fact that the power to extend the time is there in the interests of permitting the courts to do justice between the parties. This was explained in the judgment of this court, delivered by Keane CJ in The Illegal Immigrants (Trafficking) Bill, 1999 [2000] 2 IR 360 at p 394. Dealing with the fourteen day period permitted by the legislation under consideration for challenge to certain decisions and the power to extend that time for “good and sufficient reason,” he said:-
“The court is satisfied that the discretion of the High Court to extend the fourteen day period is sufficiently wide to enable persons who, having regard to all the circumstances of the case including language difficulties, communication difficulties, difficulties with regard to legal advice or otherwise, have shown reasonable diligence, to have sufficient access to the courts for the purpose of seeking judicial review in accordance with their constitutional rights.”
…
The strictness with which the courts approach the question of an extension of time will vary with the circumstances. However, public procurement decisions are peculiarly appropriate subject matter for a comparatively strict approach to time limits. They relate to decisions in a commercial field, where there should be very little excuse for delay. I agree with the trial judge that no more favourable consideration should be given to the applicant’s application for an extension of time by reason of the fact that it limited its claim to damages.
-
Newbridge Tyre and Battery Co Limited T/A Fleet Service Centre v Commissioner of An Garda Síochána [2018] IEHC 365
-
UK
-
SRCL Ltd v The National Health Service Commissioning Board (NHS) [2018] EWHC 1985 (TCC)
Region: UK
No good reason to extend time for proceedings issued outside the 30-day time limit; the contracting authority's correspondence disputing the claim and calling on the tenderer not to issue proceedings, did not constitute a good reason for an extension
Fraser J
Following correspondence from SRCL, in a letter of 19 May, the contracting authority agreed to perform an investigation. The contracting authority asked SRCL in that letter not to issue proceedings. The results of the investigation were delivered on 13 June, with the contacting authority rejecting the claim that the winning bid was abnormally low. Proceedings were issued on 30 June 2017.
“137. [Even] though SRCL knew that the winning bid was £310,000 on 26 April 2017, and SRCL had formed the view that this was abnormally low, proceedings were not issued within the required period of 30 days from that date…
154. In my judgment, the following principles apply where an extension of time is sought under Regulation 92(4):
(1) There must be a good reason for extending time.
(2) One of the matters that the court will consider is whether there was a good reason for the claimant not issuing within the time required, such as an illness or something out of the claimant’s control which prevented the claimant from doing so.
(3) It would be unwise to list or seek to limit in advance what factors should be considered to have relative weight to one another in that exercise.
(4) The court will take a broad approach in all the circumstances of the particular case.
(5) The categories are not closed or exhaustively listed in the cases. Lack of prejudice to the defendant is not a determinative factor.
155. I do not consider lack of prejudice to the contracting authority to be relevant at all in this particular case. Firstly, prejudice can take many different forms, and delay alone can constitute prejudice. Further, there are other features relevant to public policy which are integral to these strict time limits, which apply in any procurement case. They are the ones identified in Jobsin v Department of Health, and constitute the wider public interest. Turning to all the circumstances of this particular case, rapidity is particularly important. NHSE was attempting to reduce the cost to it of supplying these services, and the bidding in this case (even the sole bid submitted in the auction by SRCL) shows quite how high the gross profit margin was on the provision of these services by the incumbent. I consider that to be a relevant factor of this case which makes it particularly important that challenges to this procurement exercise be brought within the strict time limits. In my judgment, this militates against an extension of time. However, even were I to perform the exercise of considering whether there was a good reason for SRCL’s failure to issue within time, and entirely ignore the subject matter of the procurement and the reasons for it being required, I would in any event conclude that there is no good reason to extend time in this case.
…
161. I have carefully analysed the inter-solicitor correspondence in the period from the auction being held to the issue of proceedings over two months later on 30 June 2017. There is nothing in that correspondence that constitutes a good reason, in my judgment, nor is there anything in it to justify SRCL deciding it need not issue a claim form. The NHSE, through its solicitors, were adamant that there had been no breach of the regulations, and that the winning tender was not abnormally low. This approach was consistent, and was entirely justified, and as Mr Johnston said, the winning bid was “of the same order” as those which had been obtained in the other auctions for Waves 1 to 5, including winning bids from SRCL itself. I do not consider that the fact that the NHSE, in order to avoid having to face expensive and pointless litigation, agreed to perform an investigation in any event re-sets the clock for the purposes of Regulation 92(2) nor does it constitute a good reason for an extension. Even if it did, and even after the results of the investigation were provided to SRCL, it still waited until 30 June 2017 to issue. That was not even done promptly or swiftly.”
-
Jobsin Co UK Plc (t/a Internet Recruitment Solutions) v Department of Health [2001] EWCA Civ 1241
Region: UK
Extension of time to bring procurement proceedings not justified
Dyson L.J.
“33. I am in no doubt that the judge was wrong to exercise his discretion to extend time in the circumstances of this case. First, I do not accept that it was unreasonable to expect Jobsin to start proceedings before they were excluded from the tender process. On or about 14th August they were aware of all the facts that they needed to know in order to start proceedings. The judge seems to have been influenced by two factors in deciding that there was a reasonable objective excuse for Jobsin’s failure to start proceedings before they were excluded from the short list. These were that (a) they had no reason to believe that there had been any breach of the regulations and therefore no reason to consult solicitors to obtain advice as to the true legal position, and (b) even if they had known that there was a breach of the regulations, there were strong commercial reasons why it would have been reasonable for them to decide not to start proceedings until the tender process had been completed. I do not accept that either of these was a sufficient reason to extend time. As regards (a), in my view the lack of knowledge of the legal significance of facts of which a bidder is aware will not usually be a good reason for extending time. Although the maxim “ignorance of the law is no excuse” is not a universal truth, it should not in my view be lightly brushed aside. Regulation 32(4) specifies a short limitation period. That is no doubt for the good policy reason that it is in the public interest that challenges to the tender process of a public service contract should be made promptly so as to cause as little disruption and delay as possible. It is not merely because the interests of all those who have participated in the tender process have to be taken into account. It is also because there is a wider public interest in ensuring that tenders which public authorities have invited for a public project should be processed as quickly as possible. A balance has to be struck between two competing interests: the need to allow challenges to be made to an unlawful tender process, and the need to ensure that any such challenges are made expeditiously. Regulation 32(4)(b) is the result of that balancing exercise. It may often be the case that a service provider is not aware of the intricacies of regulations such as the 1992 regulations, and has little or no understanding of how they should be interpreted. If ignorance of such matters were routinely to be regarded as a good reason for extending the time for starting proceedings, the clear intent of regulation 32(4)(b), that proceedings should normally be started promptly and in any event not later than three months after the right of action first arose, would be frustrated. “
-
SRCL Ltd v The National Health Service Commissioning Board (NHS) [2018] EWHC 1985 (TCC)
In deciding whether there is good reason to extend time, the Court will take a broad approach, considering all of the circumstances of the particular case
“The court will take a broad approach in all the circumstances of the particular case … The categories are not closed or exhaustively listed in the cases.” (SRCL Ltd v The National Health Service Commissioning Board (NHS) [2018] EWHC 1985 (TCC), [154])
Time Limits balance competing interests
“A balance has to be struck between two competing interests: the need to allow challenges to be made to an unlawful tender process, and the need to ensure that any such challenges are made expeditiously.” Jobsin Co UK Plc (t/a Internet Recruitment Solutions) v Department of Health [2001] EWCA Civ 1241, [33]
Exceptional circumstances are not required to show “good reason” for an extension of time
“I note first that the Regulations do not in terms impose a particularly onerous test. It is framed in terms of “good reason” not exceptional circumstances or some other such test” (Perinatal Institute v Healthcare Quality Improvement Partnership [2017] EWHC 1867 (TCC), [43])
“I agree that exceptional circumstances are not required; the phrase in the Regulation itself is “good reason”.” SRCL Ltd v The National Health Service Commissioning Board (NHS) [2018] EWHC 1985 (TCC), [150]
To obtain an extension of time, an applicant must establish that there are reasons which both explain the delay and offer a justifiable excuse
“[The] applicant had to show that there were reasons which both explained the delay and offered a justifiable excuse. The public contract in issue involved significant liabilities, obligations and expenditure which may raise important factors for a court” (Dekra Éireann Teoranta v Minister for the Environment and Local Government [2003] 2 IR 270 at 289).
The power to extend time permits the courts to do justice between the parties
“The court must always have regard to the circumstances of the particular case and to the fact that the power to extend the time is there in the interests of permitting the courts to do justice between the parties.” (Dekra Éireann Teoranta v Minister for the Environment and Local Government [2003] 2 IR 270 at 302).
The circumstances that will justify an extension of time are not closed
SRCL