EXCESSION TECHNOLOGIES LIMITED v POLICE DIGITAL SERVICE

The exemption in regulation 7(1)(b) of the Defence and Security Public Contracts Regulations 2011 extends to procurements whose object is the conduct, control or support of intelligence activities. It is not confined to contracts directly performing intelligence operations.

For procurement limitation, time runs from the relevant breach, or from a sufficiently evidenced apprehended breach, and from the claimant’s knowledge of facts apparently indicating infringement. Legal advice is not required before time begins. A tendering authority’s duties under an implied tender contract are ordinarily limited to considering a conforming and timely tender in good faith. More detailed obligations will not be implied where they are unnecessary or inconsistent with an express reservation of power to change the process.

The claimant challenged a procurement by the defendant for a framework agreement for covert surveillance operations-room computer and information-technology services.

The court tried preliminary issues concerning whether the procurement was exempt from the Defence and Security Public Contracts Regulations 2011, whether pleaded procurement claims were time-barred, and whether an implied contract governed the tender process. The claimant had issued judicial review and Part 7 proceedings after being unsuccessful in the tender exercise.

1. Regulation 7(1)(b). The procurement was for the purposes of intelligence activities. Intelligence activities include the collection, analysis and sharing of covertly collected information. The exemption extends to contracts whose object is intelligence activities, including a software system that collates, integrates and securely shares surveillance data. The defendant was entitled to rely on the exemption.
2. The absence of contemporaneous written reasons contrary to Ministry of Defence guidance did not determine the issue. The guidance was non-binding, and the question was objective. The tender documents objectively showed that the software was an integral part of covert surveillance operations.
3. Limitation. The court must identify the relevant breach, when it occurred, and when the economic operator first knew or ought to have known facts apparently indicating infringement. Knowledge of law or legal advice is unnecessary. Claims based on refusal to provide pricing information arose when that information was refused and were out of time. No extension under regulations 53(4) and 53(5) was justified. Claims based on the scoring of the Demonstration Day arose, at the earliest, when the scores were communicated and were brought in time.
4. Implied contract. Even though the Regulations did not apply, an implied tender obligation would require a conforming and timely tender to be considered in good faith if other such tenders were considered. The more extensive obligations pleaded—applying scoring tables, ensuring compliance with technical requirements, and investigating or rejecting abnormally low tenders—were neither necessary for commercial or practical coherence nor consistent with the express reservation of a power to change the process at any time. Those terms were therefore not implied.
5. The preliminary issues were determined accordingly. Consequential matters, including any applications for permission to appeal, were adjourned.