ECJ gives guidance on the time limit for the bringing of procurement challenge

The new procurement remedies regulations which came into effect in the UK in December 2009 accelerated a trend for the rules on procurement challenge becoming more bidder-friendly. That trend has been confirmed by a new European Court decision.

Currently, if a bidder wishes to bring legal proceedings in the UK to challenge a contracting authority’s award decision, the rule has been that it has to do so “promptly and in any event within 3 months”. The ECJ has stated that the rule requiring legal challenges to be brought “promptly” is incompatible with the provisions of EU law. This decision requires contracting authorities to disregard the equivalent provision in the new remedies regime.

What is the case?

The case is Case C-406/08 Uniplex (UK) Ltd v NHS Business Services Authority (“Uniplex”), a decision made by the European Court of Justice (“ECJ”) in respect of a claim brought against the National Health Service by a distributor of surgical instruments. The ECJ has provided a number of important guidelines regarding the interpretation of the Public Contracts Regulations 2006 (“PCR”), which implements the EU procurement rules in the UK.