Recent procurement case law

In this article we look at two procurement challenges and the lessons that can be learned from them.

The first, ROL Testing v Northern Ireland Water, was a Northern Ireland case brought while the procurement was still underway. The key question for the court was whether the 30 day limitation period for the bringing of the challenge should have started to run before or after expert advice on the claim was received.

The claim was that the Invitation to Negotiate (ITN) (which was no less than 3,116 pages long!) contained a spreadsheet that was meaningless and did not allow the accurate calculation of annual cost. The contracting authority argued the claim was out of time. The question for the court was whether it should include the time taken by the claimant to seek the advice of accountants on how to interpret the “rogue” spreadsheet in the calculation of when the 30 day limitation period expired.

The court decided the claim was in time and that the clock had started once the claimant had received the input from its accountants, not on the date the ITN was sent out or the date the claimant first read the ITN. It raises the question of whether the same approach would be taken to the obtaining of legal advice about the strength of a claim. Note that the court did look at whether the accountants’ advice had been sought and received in a reasonable time frame (it took the view that about a week was needed to instruct the accountants, allow them to review the documents and then report back to the claimant). Obviously too, to successfully argue this point, it would need to be shown that the claimant’s formation of sufficient “knowledge” of the breach was dependent on the receipt of the expert advice.

The second case worth a brief mention is Bristol Missing Link Ltd v Bristol City Council. It is of interest as it is a relatively unusual instance of the High Court maintaining an automatic suspension against a contracting authority, on the basis that the balance of convenience did not, on this occasion, merit lifting it.

The key elements in the reasoning of the court were:

1. The Council had failed to show that a delay in awarding the contract would have a significant impact on users of the service in question.
2. The Council had sought a potentially unfair advantage through its approach to early disclosure.

It is reminder to contracting authorities that, although the general tendency is for the courts to lift automatic suspensions, this is by no means a foregone conclusion.