Matrix-Scm Ltd v London Borough of Newham

Under Regulation 47(7)(b) of the Public Contract Regulations 2006, time runs from when the claimant knew or ought reasonably to have known facts clearly indicating an infringement. A tenderer must read the procurement documents as a whole, including worked examples, and cannot defer time by failing to analyse information that makes the alleged breach apparent. Extensions are granted strictly, having regard to the need for rapid resolution of procurement challenges. On an interlocutory application, claims should be struck out only where it is sufficiently clear that they are bound to fail. A structured evaluation process will not readily be treated as unlawful on the basis of alleged conscious or unconscious preference unsupported by evidence.

Matrix challenged Newham’s procurement of a vendor-neutral managed services contract, awarded to Beeline International. It alleged that Newham had used an incorrect pricing methodology, treated the savings element unlawfully, and given Beeline an illegitimate preference as incumbent supplier.

Newham applied under CPR Rule 24.2, alternatively CPR 3.4, contending that the first two grounds were time-barred and that the third had no realistic prospect of success. The central issues were when Matrix knew or ought to have known of the alleged infringements, whether time should be extended, and whether the preference allegation was sufficiently arguable to proceed to trial.

1. Grounds 1 and 2. The applicable limitation period under Regulation 47(7)(b) of the Public Contract Regulations 2006 ran from the date when Matrix knew or ought to have known facts apparently clearly indicating the alleged infringement. The procurement documents, read as a whole, disclosed the pricing and savings methodologies. The worked table was an integral part of the Evaluation Model and made the intended calculations apparent. A reasonable and experienced tenderer should therefore have identified any alleged inconsistency or unlawfulness when the documents became available on 18 March 2010.
2. The claims should consequently have been brought by 18 June 2010 and were time-barred. There was no good reason to extend time. Matrix had sufficient information, experience and opportunity to challenge the process, and the policy requiring rapid resolution of procurement challenges outweighed the absence of demonstrable additional prejudice.
3. Ground 3. Newham was required to apply the published criteria in good faith, without manifest error, and consistently with equality and transparency. The tender documents made clear that bidders’ current experience and activities could inform assessment of quality. That approach was open to all tenderers and did not inherently favour the incumbent.
4. The references in the officer’s Briefing Note and report to additional benefits of appointing Beeline were contextual reasons supporting the decision whether to award the contract after the structured evaluation. They did not establish that those benefits had influenced the scoring process, consciously or unconsciously. The allegation had no reasonable prospect of success at trial.
5. Newham’s application succeeded. The claims under Grounds 1, 2 and 3 were struck out.