Amaryllis Ltd v HM Treasury

For proceedings under regulation 47(7) of the Public Contracts Regulations 2006, a notice must identify the actual breach relied upon and state the intention to commence proceedings. Detailed particulars are unnecessary if the alleged breach is clear in context.

The limitation period begins when the specific breach occurs, ordinarily when an irrevocable decision excludes a tenderer or rejects its tender. Proceedings must be brought within three months and promptly. Promptness is assessed in the circumstances, including whether delay resulted from the contracting authority’s failure to provide information. If an extension is required, the court considers the length and reasons for delay, responsibility for it, and prejudice.

Amaryllis Limited claimed damages exceeding £11 million against HM Treasury, sued as OGCbuying Solutions, for alleged breaches of the Public Contracts Regulations 2006 in evaluating pre-qualification questionnaires for a furniture framework agreement.

The defendant applied for strike-out and summary judgment. It argued that Amaryllis had not given adequate notice under regulation 47(7)(a), and that the proceedings were not brought promptly or within three months under regulation 47(7)(b). The central issues were whether the letter of 4 June 2008 was a valid notice, when the grounds for proceedings first arose, and whether the proceedings were timely.

1. Notice under regulation 47(7)(a). The letter of 4 June 2008 adequately identified the alleged breaches, including the alleged disregard of previous experience, unfair or unequal evaluation, and failure to disclose the relative importance and weightings of the questionnaire questions. It also expressly referred to the Regulations and stated the intention to commence proceedings. Detailed or lengthy particulars were unnecessary. The adequacy of the notice had to be assessed against the information available to the claimant, particularly the defendant’s failure to provide a proper debrief. The first ground of the application therefore failed.
2. When time began to run. The relevant date was when the specific breach occurred. The availability of the pre-qualification questionnaire was not itself the breach complained of. Nor was the preparation of the evaluation report an irrevocable decision, since it contained recommendations requiring adoption by decision-makers. The grounds first arose on 17 March 2008, when the defendant informed Amaryllis that its Lot 1 bid had been unsuccessful.
3. Promptness and the three-month period. The claim was issued on 16 June 2008, within three months of 17 March. The claimant also acted promptly. It sought explanations, made reasonable enquiries, considered whether to continue with Lots 2–5, and issued proceedings when the defendant failed to provide the requested information. The claimant was entitled to gather sufficient information before deciding whether to litigate. The defendant’s failure to provide the information required by regulation 32(9) was the principal cause of any delay.
4. Extension of time. Although no extension was necessary, the claimant had a real prospect of establishing good reason for any delay. Relevant considerations included the length and reasons for delay, responsibility for it, any contribution by the defendant, and prejudice. The defendant had identified no prejudice.
5. The applications for summary judgment and strike-out were dismissed.