Corelogic Ltd v Bristol City Council

Amendments to a procurement claim which introduce complaints about the evaluation of a tender may constitute new claims, even where they arise from the same procurement exercise. A claim form must be interpreted objectively by reference to its wording and, where appropriate, the contemporaneous factual matrix. Later particulars cannot ordinarily be used to give an earlier claim form a meaning derived from subsequent events or information. Where the original and amended claims concern different breaches, different periods, different statutory obligations and potentially different losses, they are unlikely to arise from the same or substantially the same facts. A delay caused by professional error or tactical choice is not a good reason to extend a statutory procurement limitation period.

Corelogic was an unsuccessful tenderer in a procurement conducted by Bristol City Council under a framework agreement governed by the Public Contracts Regulations 2006. It issued proceedings within the applicable procurement period, initially alleging that Bristol had failed to provide adequate reasons and information for its award decision.

After receiving further information, Corelogic sought to amend its claim form to add allegations of manifest errors in evaluating its tender price, use of undisclosed pricing criteria and failure to disclose the price-scoring formula. Bristol opposed the amendments on the grounds that they introduced new, time-barred claims. The central issues were whether the proposed allegations were already contained in the original claim form, whether they arose from the same or substantially the same facts, and whether time should be extended.

1. Application refused. The proposed amendments introduced new claims within section 35 of the Limitation Act 1980 and CPR 17.4. They alleged different breaches from the original complaint, which concerned the post-award failure to provide information under Regulation 32. The proposed claims concerned the evaluation and award decision itself.
2. A claim form is interpreted objectively by reference to its words and, where appropriate, the contemporaneous factual matrix. The court may read it with particulars served at the same time, as illustrated by Evans v CIG Mon Cymru Ltd [2008] EWCA Civ 390. That principle did not assist Corelogic. The particulars were served about 10 weeks later and had been substantially informed by intervening correspondence. There was no clerical or formal error in the original claim form.
3. The original claim form, read in context, advanced a comprehensible claim concerning inadequate post-award information. The later allegations concerned different types of breach, different provisions or parts of the Regulations, a different period and different potential losses. They therefore did not arise out of the same or substantially the same facts for the purposes of CPR 17.4.
4. Under Public Contracts Regulations 2006, Regulation 47D(2), time ran from when Corelogic knew or ought to have known facts apparently indicating an infringement. Applying SITA UK Ltd v Greater Manchester Waste Disposal Authority [2011] EWCA Civ 156, Corelogic had that knowledge no later than 9 May 2013, and probably earlier. The proposed claims were consequently time-barred by the hearing on 10 July 2013.
5. Regulation 47D(4) permitted an extension only for good reason. No good reason was shown. Professional negligence, or a deliberate tactical decision, would not suffice, consistently with Mermec UK Ltd v Network Rail Infrastructure Ltd [2011] EWHC 1847 (TCC). Permission to amend was refused. The particulars would probably need to be redrafted to conform to the original claim form, with 14 days allowed if necessary.