There is an infamously short timescale to challenge a procurement decision. These days it is generally 30 days from knowledge of the breach claimed, see our briefing on the new time limit for procurement-related judicial review for more details. But when do you know? The courts have recently provided a number of guidelines to assist in this decision:
- Sufficient knowledge to take an informed view.
- Sufficient information to commence proceedings.
- A knowledge of the basic facts which would lead to a reasonable belief that there is a claim.
- Knowing with sufficient confidence to justify embarking on the preliminaries to the issue of a claim.
- Something approximating more to certainty than mere suspicion or guess.
This is a difficult test to apply to a new set of facts and potentially one which could destroy any chance of compensation before the case even starts. Add that to the difficulty of identifying whether a decision or action has taken place or is just foreshadowed (as Ms Nash is experiencing in her judicial review against Barnet Borough Council) and clients are wise to issue proceedings earlier than later.
The Scottish court, however, has provided some hope for a lenient interpretation of the new time limit. In a decision made on 11 July in Nationwide Gritting Services v Scottish Ministers, the judge took the view that a gritting salt supplier had insufficient knowledge of a breach of procurement law to start proceedings despite it being possible to find the fact that a procurement had taken place on the internet in a couple of places and some anecdotal tip-offs from industry members. In that case the time only started running when the ministers failed to respond satisfactorily to pre-action letters giving rise to sufficient doubt about the process undertaken.
Nonetheless, it is still a bold bidder who enquiries and waits over 30 days for an answer.
John Houlden leads our specialist cross-disciplinary procurement team. Chris Jackson and Richard Binns are litigators conducting procurement disputes.