Court provides confusion, not guidance, on the time limit for the bringing of procurement challenges

The UK courts are potentially on a collision course with the European Court of Justice over the issue of when an aggrieved bidder should bring a challenge to an irregular procurement. Based on a recent ECJ ruling, if a bidder wishes to bring legal proceedings in the UK to challenge a contracting authority’s award decision, the current rule is that it has to do so within 3 months after the grounds for launching such a challenge arose. The High Court has now stated that such ground arises at the point when the aggrieved bidder becomes aware of the infringement itself in a broad sense, even if it is not necessarily aware of the detailed reasons behind the specific elements of the contracting authority’s decision.

WHAT IS THE CASE?

The new case is SITA UK Limited v Greater Manchester Waste Disposal Authority [2010] EWHC 680 (Ch), a decision made by the English High Court in respect of a procurement challenge regarding a prominent PFI project to provide waste disposal facilities for Greater Manchester.

WHY IS THIS CASE IMPORTANT?

This case illustrates how the UK public procurement rules regarding limitation periods will be interpreted and applied by the Courts in the UK, despite the recent judgment of the European Court of Justice (“ECJ”) in Case C-406/08 Uniplex (UK) Ltd v NHS Business Services Authority (“Uniplex”),1 which encourages a more liberal interpretation of the EU procurement rules in respect of limitation periods.