ACCESS FOR LIVING v LONDON BOROUGH OF LEWISHAM

Under regulation 92(4) of the Public Contracts Regulations 2015, the court has an open-ended discretion to extend the 30-day period where there is a good reason. The inquiry is fact-sensitive. A short extension or lack of prejudice is not, by itself, sufficient. Ignorance of the law, commercial considerations, carelessness, lack of urgency and pre-action correspondence are unlikely, without more, to constitute a good reason. A transparency challenge based on unclear tender documents may accrue when the claimant knew or ought to have known of the alleged ambiguity, rather than necessarily when the documents were issued.

The claimant, a charity providing supported-living services for the defendant local authority, was unsuccessful in five mini-competitions conducted under a framework agreement. It challenged the procurement under Part 2, Chapter 3, Section 7 of the Public Contracts Regulations 2015, alleging evaluation against undisclosed criteria, unequal treatment and an insufficiently clear method statement.

The proceedings were issued outside the 30-day period in regulation 92(2). The claimant sought an extension under regulation 92(4), relying on an extended contractual standstill, the shortness of the delay and the absence of practical prejudice. The authority sought strike-out or summary judgment on limitation. The issues were whether there was a good reason to extend time and when the claimant knew or ought to have known of the allegedly unclear tender requirement.

1. Extension of time. The application to extend time was refused and the claim was struck out. Regulation 92(4) requires a good reason, subject to the three-month long-stop in regulation 92(5). The authorities establish no exhaustive list. The court must adopt a broad, fact-sensitive approach, but the shortness of the extension is not itself sufficient. Lack of prejudice may be relevant, but it is not determinative.
2. The claimant’s misunderstanding of the relationship between the contractual standstill and the limitation period was not a good reason. Nor were the claimant’s charitable status, the unavailability of counsel, the merits of the claim, or the fact that the delay was only a few days. Granting an extension would disrupt the Council’s ability to plan after expiry of the limitation period and would undermine the public interest in prompt procurement challenges.
3. The court declined to follow the approach in Henry Brothers (Magherafelt) Ltd. v Department of Education for Northern Ireland insofar as it treated the short delay and extended standstill as sufficient. It endorsed the approach in Mermec UK Ltd. v Network Rail Infrastructure Ltd., Turning Point Ltd. v Norfolk County Council and SRCL Ltd. v National Health Commissioning Board.
4. As to the alternative challenge to MS5’s clarity, the cause of action did not necessarily accrue when the invitation to tender was issued. It was arguable that the claimant did not then know that the authority would adopt a different interpretation. However, by 7 February 2020, when the claimant received the reasons for its score, it ought to have known the facts founding that challenge. The claim was therefore out of time, and all pleaded claims required an extension which was refused.

First-instance decision. The judgment records no prior appellate decision in the same proceedings.