Mears Ltd v Leeds City Council

Under regulation 47(7) of the Public Contracts Regulations 2006, the limitation date depends on the nature of the alleged infringement. A challenge may accrue before a tenderer is eliminated or a contract is awarded where the infringement occurred during the procurement and the claimant knew, or ought to have known, of it. Where the claim arises from an elimination or award decision, time generally begins when the claimant knows, or ought to know, the reasons establishing the infringement. Knowledge must place the claimant in a position to form an informed view about whether the Regulations have been infringed. Disclosure of confidential evaluation guidance may nevertheless be ordered where necessary for the fair disposal of proceedings, subject to protective measures such as a confidentiality ring.

Mears Limited tendered for lots 1 and 4 of Leeds City Council’s competitive dialogue procurement for housing improvement and refurbishment works. After receiving and evaluating tenders, the Council issued pricing amendments and allowed Mears a short period to respond. Mears later challenged the procurement, alleging breaches of transparency and equal treatment, including undisclosed evaluation criteria and weightings.

The court determined, before the interim injunction application, Mears’s application for disclosure of the Council’s model answers and the Council’s contention that two allegations concerning the May 2010 pricing amendments were time-barred under regulation 47(7) of the Public Contracts Regulations 2006.

1. Disclosure. The model answers formed part of the guidance used to evaluate tenders and were relevant to Mears’s allegation that undisclosed sub-criteria or weightings had been used. Disclosure was necessary to determine fairly whether the model answers introduced matters which should have been disclosed to tenderers.
2. Confidentiality did not prevent disclosure. The court retained power to impose safeguards, and ordered inspection through a confidentiality ring comprising named solicitors and counsel, with a further nominated Mears representative permitted to receive instructions subject to protective conditions. Guidance which merely promoted fair and consistent assessment within disclosed criteria could remain confidential; guidance introducing undisclosed criteria, sub-criteria or weightings could not.
3. Limitation. The phrase “the date when grounds for the bringing of the proceedings first arose” in regulation 47(7) had to be applied by reference to the alleged breach. Claims concerning breaches occurring during the procurement could arise before a tenderer was eliminated or a contract awarded. The relevant date was when the claimant knew, or ought to have known, enough about the infringement to form an informed view about bringing proceedings.
4. Claims that the Council changed pricing requirements after receipt of tenders and allowed insufficient time to respond concerned discrete breaches occurring in May 2010. Mears had sufficient knowledge by 18 May 2010, when the response period expired. The three-month period therefore expired on 18 August 2010. Proceedings issued on 12 October 2010 were out of time, and no good reason for extending time had been shown.
5. The allegations in paragraphs 20(1) and 20(2) of the Particulars of Claim were struck out. The remaining procurement issues were to proceed in the Technology and Construction Court.

First-instance proceedings. The judgment records earlier procedural directions concerning disclosure, the interim injunction application and transfer of the remaining issues to the Technology and Construction Court.