Amey Highways Ltd v West Sussex County Council

Under regulation 92 of the Public Contract Regulations 2015, time runs from when grounds for proceedings arise and when the economic operator first knew or ought to have known of them. Knowledge of facts apparently indicating an infringement is sufficient. A bidder cannot ordinarily wait until the procurement outcome before challenging a known illegality.

The power to extend time for good reason is broad but exercised strictly. The court may consider prejudice, the importance and apparent strength of the claim, prematurity, clarity of the infringement and wider administrative interests. No particular explanation for delay is an absolute precondition. At an interlocutory stage, apparent merits should be assessed cautiously.

Amey challenged West Sussex County Council’s procurement of a highways term service contract under the Public Contracts Regulations 2015. It alleged that instructions requiring changes to its staff-cost presentation were unlawful and that the evaluation contained manifest errors.

The Council contended that the instruction claims were out of time and sought strike-out or summary judgment. Amey sought extensions of time and summary judgment in its favour. The Council also sought to amend its Defence and to strike out the manifest-error claims.

The central issues were when time began to run, whether extensions should be granted, whether the Defence should be amended, and whether the pleaded manifest errors had a realistic prospect of success.

1. Instruction claims and limitation. Regulation 92 requires a two-stage enquiry: when grounds for proceedings arose, and when the economic operator first knew or ought to have known that they had arisen. Knowledge of facts apparently indicating an infringement is sufficient. A bidder who detects an illegality during the procurement should not ordinarily wait for the result before bringing proceedings.
2. The claim concerning four full-time equivalent capital staff accrued on 19 January 2018. The claim concerning 4.25 third-party-funded staff accrued on 2 February 2018. In context, the Council’s earlier instruction to ensure that those costs were “reflected” in the local office overhead did not clearly require their full inclusion without a percentage reduction. The later instruction was the first sufficiently clear instruction of that kind.
3. The court extended time for both claims. The standstill agreement provided good reason for extending the 4.25-staff claim. For the capital-staff claim, the short earlier delay caused no material prejudice and would have had no practical consequence because the claims would necessarily have progressed together. The absence of a good reason for delay was an important consideration, but not an absolute precondition to exercising the discretion.
4. The discretion under regulation 92(4) is broad but strict. Relevant matters may include the importance and strength of the claim, prematurity, the clarity of the infringement, knowledge, prejudice to the defendant or third parties, and good administration. These matters are not exhaustive. Merits should be assessed cautiously at an early stage.
5. Permission was granted to the Council to amend its Defence. The proposed factual and legal defences were not fanciful or insubstantial. No summary judgment or strike-out order was made on the instruction claims.
6. The manifest-error claims were adequately pleaded. They alleged that the Council’s understanding of the savings cards was wrong or irrational, not necessarily that the Council was barred from considering weaknesses in them. Resolution required factual evidence and could not properly be determined on a strike-out or summary-judgment application. The Council’s application concerning those claims was rejected.