A salutary reminder not to delay in raising a procurement challenge

(Citysprint UK Limited v Barts Health NHS Trust [2021] EWHC 2618 (TCC))

A recent High Court case has brought into sharp focus the problems that can arise as a result of the tight timescales facing bidders seeking to bring a challenge under the Public Contracts Regulations.   

The issue

Those involved in bidding on public procurement projects should be very conscious that the time for raising a challenge if something goes wrong is very short. Generally speaking, a claim must be issued within 30 days of the date the bidder had knowledge of the problem. 

Whilst the parties may sensibly agree a standstill agreement in order to buy more time to investigate the issues and try to reach a resolution without the need for formal court proceedings, there is very little scope for leniency within the court rules if no resolution is reached and the deadline for issuing or serving the claim documents is subsequently missed.

Facts

In this case, Citysprint was the incumbent provider of pathology transport and logistics services to Barts Health NHS Trust. 

Following a re-tender, Citysprint was informed that its bid had been unsuccessful and that the contract would be awarded to a rival. Citysprint sought to issue a claim challenging the procurement process run by the Trust, and the parties entered into a standstill agreement which specified the deadline by which Citysprint must issue its claim. 

However, due to some confusion arising over the court fee payable upon issue of the claim, and the date on which the claim form was issued, Citysprint was late in serving the Court document on the Trust.  There was a further technical defect on the question of whether the papers could be served by email.

Decision

Luckily for Citysprint, the court was, on this occasion, prepared to grant relief in respect of the procedural failings and allow the claim to continue, largely as a result of the short period of delay and the very unusual factual circumstances surrounding payment of the court fee and the confusion that was generated as a result. 

However, such leniency is by no means guaranteed and the Court was very clear on the exceptional circumstances in this case. The decision could very easily have gone the other way, leaving Citysprint without a remedy and no doubt its solicitors with more than a few sleepless nights. 

Points to take away

So what learning can be taken from this?   

In our experience, the single most important thing that a challenger can do is seek legal advice as soon as possible after it becomes apparent that something may have gone wrong in terms of the procurement process. 

Tight timetables and complex rules mean that obtaining early, strategically focused legal advice on the merits, options and next steps really is fundamental to a challenger's success – and that is regardless of whether the challenger's ultimate objective is to achieve a commercial resolution without the need for proceedings or to obtain an automatic suspension of the procurement process and a remedy through the courts. Further early engagement with legal advice may actually assist in resolving the matter quickly through correspondence without the need for formal proceedings.

For more information please contact Mark, Terence or Catherine.