Turning Point Ltd v Norfolk County Council

In a public procurement challenge, the 30-day limitation period begins when the tenderer knows, or ought to know, the basic facts clearly indicating an infringement. It does not await notification of elimination where the complaint concerns earlier defects in the procurement process. A short delay is not itself a good reason for extending time.

A tender containing an objectively construed qualification or caveat to price is non-compliant where the invitation to tender excludes qualifications. A contracting authority is generally not required to seek clarification of a voluntary commercial qualification, although clarification may be appropriate for an obvious formal or arithmetical error. An implied contract cannot add obligations inconsistent with the statutory procurement regime or expressly excluded by the tender documents.

Norfolk County Council conducted a restricted procurement for adult drug and alcohol treatment services. Turning Point Ltd complained that the tender documentation and subsequent answers did not provide adequate TUPE and pension information. It also submitted a pricing note stating that it had assumed no redundancy costs and wished to discuss the position if redundancies occurred.

The Council rejected the tender as qualified, although it accepted that Turning Point would otherwise have won. Turning Point issued proceedings alleging breaches of the Public Procurement Regulations 2006, Community law obligations and an implied contract. The Council applied to strike out the claim or obtain summary judgment on limitation and merits grounds.

1. Limitation. The complaints about inadequate or incomplete TUPE and pension information were barred by regulation 47D. On Turning Point’s own evidence, it knew by the time it submitted its tender that the information was inadequate and incomplete. The relevant basic facts therefore clearly indicated the alleged infringements by 9 February 2012. Time did not await the Council’s later decision to reject the tender.
2. There was no continuing obligation to provide further information after tender submission. The tender documents indicated that further information would be supplied only to the successful bidder. The Council was entitled to evaluate the submitted tenders without reopening the tender process.
3. No good reason justified an extension under regulation 47D(4). The short period sought was insufficient by itself. A good reason would ordinarily involve circumstances beyond the claimant’s control, such as significant illness or detention of relevant personnel.
4. The pricing note. The note had to be construed objectively as part of the proposed contract. Its reference to restructuring through natural wastage and to further discussions if redundancies occurred meant that no redundancy costs had been priced and that the allocation of those costs remained open. It was therefore a qualification or, at least, a caveat. The ITT expressly prohibited qualifications and caveats.
5. The Council was not required to seek clarification before rejecting the tender. Clarification of a voluntary qualification could undermine transparency, create an unequal opportunity to amend tenders and disrupt the procurement. This differed from an obvious formal, transposition, formatting or arithmetical error, which might properly be clarified.
6. Implied contract. There was an arguable case that an implied contract existed, but the ITT excluded any obligations beyond the statutory obligations and its express terms. No wider duties to act fairly could therefore be implied. Any statutory obligations carried the statutory limitations.
7. The claim could not succeed even on Turning Point’s factual case. It was struck out and judgment was entered for the Council.