Sita UK Ltd v Greater Manchester Waste Disposal Authority (Rev 1)

In procurement proceedings governed by the Public Services Contract Regulations 1993, the three-month period under regulation 32(4)(b) must, consistently with Uniplex (UK) Ltd v NHS Business Services Authority C-406/08, run from when the claimant knew or ought to have known of the infringement. “Grounds” means the infringement in broad terms, not every underlying fact or evaluative detail. Knowledge of loss is unnecessary.

Where the regulation cannot be interpreted directly to produce that result, the court should use its discretion to give the claimant an equivalent three-month period beginning with knowledge of the infringement. A later discovery that the same breach began earlier does not ordinarily restart time. Extensions are approached strictly, having regard to the need for rapidity and certainty in public procurement. The claim was struck out as time-barred.

The claimant was an unsuccessful tenderer for a major waste-disposal PFI project conducted by the defendant under a negotiated procurement procedure. A preferred bidder was selected in January 2007. After extended negotiations, the defendant entered into the contract with that bidder on 8 April 2009.

The claimant alleged failures of transparency, equal treatment, debriefing and identification of the most economically advantageous tender. It issued proceedings on 27 August 2009, claiming damages and related relief. The defendant applied to strike out the claim under CPR 3.4 and/or for summary judgment under CPR 24, arguing that regulation 32(4)(b) made the proceedings out of time.

The central issues were when the limitation period began, what constituted the “grounds for the bringing of the proceedings”, whether the claimant knew of the relevant infringements by April 2009, and whether time should be extended.

1. Application allowed. The proceedings were struck out because they were brought outside the applicable limitation period and no good reason existed for extending time.
2. Following Uniplex (UK) Ltd v NHS Business Services Authority C-406/08, the domestic provision had to operate so that time ran from the date on which the claimant knew, or ought to have known, of the infringement. The word “promptly” could not itself provide a compliant limitation rule. The court therefore used the regulation’s three-month period through its discretion, beginning at the date of knowledge.
3. “Grounds for the bringing of the proceedings” meant the infringement in a broad sense. It did not require knowledge of every underlying evaluation, document or factual detail. Knowledge of potential loss was not an additional requirement. The relevant question was whether the claimant knew facts apparently clearly indicating an infringement, although those facts need not absolutely prove it.
4. The claimant knew by 8 April 2009, or shortly afterwards, that the final project was materially more expensive and different from its tender, that it had not been allowed to re-enter the process, and that there was a prima facie case of breach of the procurement obligations. Its correspondence expressly alleged breaches, threatened proceedings and invoked limitation concerns. That knowledge was sufficient for the principal complaints ultimately pleaded.
5. The later information supplied in July 2009 gave further detail and suggested that the alleged breaches had roots in an earlier period. It did not create a new cause of action or materially alter the infringement already known. A claimant cannot ordinarily obtain a second limitation period merely by discovering that an already-known breach began earlier.
6. The agreed extensions did not save the claim. Even on the most favourable construction, the final extension expired on 3 August 2009. The proceedings issued on 27 August 2009 were therefore late.
7. The discretion to extend was refused. The public interest in procurement integrity and the absence of identified additional prejudice were insufficient. The claimant’s own delay, despite its expertise and express awareness of urgency, weighed strongly against an extension.