Siemens Mobility Limited v High Speed Two (HS2) Limited

For procurement challenges subject to a statutory 30-day period, time runs when the economic operator knows, or ought reasonably to know, facts apparently clearly indicating an infringement of the particular duty relied on. Knowledge of supporting evidence or every detail of the breach is unnecessary.

Constructive knowledge is assessed objectively by reference to the reasonably well-informed and normally diligent tenderer, in the circumstances of the procurement. The enquiry is fact-sensitive and includes the nature and value of the procurement, the public body involved, the cause for concern, and the ease of obtaining clarification.

Allegations based on breaches of different duties have separate limitation periods. A procurement-procedure breach and a conflict-of-interest breach therefore do not necessarily stand or fall together.

The claimant was an unsuccessful tenderer in the defendant’s procurement of high-speed railway rolling stock. It alleged, among other matters, that the defendant had failed to address conflicts of interest arising from the pension interests of two former employees of a tenderer, and had failed to comply with its Tender Opening Evaluation Procedure by not recording concerns expressed during the evaluation.

The defendant applied to strike out the claim or obtain summary judgment, contending that both allegations were outside the 30-day period in regulation 107 of the Utilities Contracts Regulations 2016. The central issues were when the claimant knew, or ought to have known, facts apparently clearly indicating each alleged infringement, and whether the allegations concerned the same duty.

1. Disposition. The claim was struck out insofar as it alleged failure to comply with the Tender Opening Evaluation Procedure. The claim alleging breach of regulation 42 of the Utilities Contracts Regulations 2016 was not shown to be out of time and was not struck out or summarily dismissed. The claim concerning Mr Rowell was also struck out as untenable.
2. Under regulation 107(2), time begins when the economic operator first knew or ought to have known facts apparently clearly indicating an infringement. The claimant need know the essential facts constituting the cause of action, but need not know all evidential particulars. The relevant question is directed to the particular duty and breach alleged.
3. Constructive knowledge is assessed by the objective standard of the reasonably well-informed and normally diligent tenderer. The assessment is fact-sensitive. Relevant considerations include the subject matter and value of the procurement, the nature of the contracting body, the cause for concern, and the ease or difficulty of obtaining further information.
4. The properly understood claim concerning Messrs Sterry and Williamson was based on their continuing pension interests, not merely their former employment by Bombardier. Knowledge of the former employment did not, without more, amount to knowledge of facts apparently clearly indicating a breach of regulation 42. The defendant had not shown that the claimant had the necessary actual or constructive knowledge before receiving confirmation of the pension interest on 2 August 2022.
5. The claimant had the requisite knowledge concerning the alleged failure to record Mr Sterry’s concerns shortly after disclosure of the WhatsApp exchange on 1 April 2022. The general nature of his role and the fact that he had expressed concerns were sufficient. Alternatively, a reasonably well-informed and normally diligent tenderer would then have sought clarification.
6. The conflict-of-interest allegation and the Tender Opening Evaluation Procedure allegation concerned different duties. The latter being out of time did not make the former out of time. The estoppel issue was academic; had it arisen, the October 2021 correspondence would not have constituted a representation capable of creating the asserted estoppel.