Bromcom Computers Plc v United Learning Trust & Anor

Under regulation 92(2) of the Public Contract Regulations 2015, time runs when the economic operator knows or ought to know facts which apparently clearly indicate an infringement and enable an informed view about bringing proceedings. Absolute certainty is unnecessary, but mere suspicion is insufficient. The court assesses the substance of the information known, including its clarity, structure and the circumstances in which it was communicated. Oral information may suffice, although poorly structured or incomplete oral debriefing may delay the point at which proceedings are reasonably warranted. Challenges to one procurement decision involving breaches of the same duty ordinarily run from the same date; separate decisions at different stages may attract separate limitation periods.

The claimant, an unsuccessful bidder in a procurement exercise governed by the Public Contract Regulations 2015, challenged the evaluation leading to the award of a management information system contract to Arbor Education Partners Ltd. Proceedings were issued on 18 May 2020. The defendants applied under CPR Pt 3.4(2)(a), alternatively for summary judgment, contending that the claim was outside the 30-day period in regulation 92(2).

The central issues were whether the pleaded allegations concerned one duty or several duties, and when the claimant knew or ought to have known facts clearly indicating an infringement.

1. Outcome. The defendants’ application succeeded only in part. Paragraphs [72]–[74] of the Particulars of Claim and paragraph (5) of the prayer were struck out. The remaining claim was not out of time and was not struck out.
2. Limitation test. Regulation 92(2) requires knowledge of facts which apparently clearly indicate an infringement, though they need not establish a certain or likely-successful claim. The test enables the economic operator to form an informed view both about whether an infringement occurred and whether proceedings were appropriate. The assessment is fact-sensitive and depends on the procurement exercise, the alleged breach and the factual material available.
3. Nature of communication. The court must focus on what the claimant knew, rather than on information it lacked. The manner of communication nevertheless matters. Structured written information is generally more readily understood and assessed than information given during a heated, remote and unstructured oral exchange. A compliant regulation 86 notice is not invariably required before time begins, but its absence may be significant.
4. Single and separate breaches. Challenges to separate decisions taken at different stages of a procurement may have separate limitation periods. By contrast, allegations concerning one decision and constituting breaches of the same duty are ordinarily particulars of one infringement, and later discovery of further breaches does not restart time. At the strike-out stage, genuinely tenable allegations of breaches of separate duties should be considered separately.
5. Application. The allegations concerning the evaluation leading to the contract award were breaches of one comprehensive duty under regulation 18(1). The pleaded duties to evaluate diligently, correctly and without manifest error, and to identify the most economically advantageous tender, were formulations or aspects of that same duty. The claimant had suspicion and grounds to seek more information following the April debriefings, but did not have facts clearly indicating an infringement until receiving the detailed written material on 22 or 23 April 2020. The claim issued on 18 May was therefore in time. The alleged implied tender contract added nothing to the statutory obligations and was struck out.