Royal Cornwall Hospitals NHS Trust v Cornwall Council

Challenges under the Public Contracts Regulations 2015 must be brought within the prescribed period once the economic operator knows, or ought to know, that grounds for proceedings have arisen. Investigation, consultation and validation of an already known complaint will not ordinarily justify extending time.

The procurement duties and information obligations are directed to economic operators participating, or seeking to participate, in the procurement. A person who elects not to tender cannot ordinarily demand post-withdrawal procurement information as a basis for challenge. A speculative prospect of a future procurement or contract does not establish loss or risk of loss caused by the alleged breach.

The claimant, an incumbent provider of sexual health services, challenged the defendant local authority’s procurement of replacement services. It alleged that the financial envelope made the specification impossible to satisfy, that the defendant breached transparency duties by withholding information, and that the successful tender was non-compliant or abnormally low.

The claimant had known the financial envelope and relevant tender terms from 25 February 2019, decided not to tender on 18 March 2019, and commenced proceedings on 24 May 2019. The defendant applied under CPR rules 3.4 and 24.2 to strike out the pleaded breaches or obtain summary judgment.

1. Time bar. The complaint that the financial envelope and service specification were unlawful accrued, at the latest, on 25 February 2019, when the claimant knew the relevant tender terms. Proceedings issued on 24 May 2019 were out of time under regulation 92 of the Public Contracts Regulations 2015. The claimant’s further investigation and consultation did not amount to a good reason for extending time. Even if time began on 18 March 2019, the claim remained out of time.
2. Scope of procurement duties. The Regulations establish a regime governing procurements in relation to those who wish to participate. The transparency obligation in regulation 18 and the information provisions in regulations 55 and 86 did not impose an enforceable post-withdrawal duty to provide the claimant with procurement information after it had decided not to tender.
3. Alternative information analysis. Even if some duty were owed to a non-participating economic operator, the claimant was not entitled to confidential information or information extending beyond the categories regulated by regulation 86. The court found no sufficient policy or construction basis for such an expansive obligation.
4. Loss and collateral attack. Even on the claimant’s widest case, it could not show loss or risk of loss in consequence of any breach. The effective cause was its decision not to participate, which deprived it of the benefits available to a tenderer. The alleged prospect of a new tender and a more beneficial outcome was doubly speculative. The claim was in substance a collateral challenge to the original tender provisions and should have been brought within the prescribed period.
5. Disposition. The relevant passages of the Particulars of Claim, including paragraphs 19(a), 19(b) and 20, were struck out and/or disposed of by summary judgment in favour of the defendant.