Oracle Security Services Limited v Barts Health NHS Trust & Anor

For procurement claims under Public Contracts Regulations 2015, the 30-day period in Regulation 92(2) begins with the date of actual or constructive knowledge that facts apparently indicating an infringement exist. The claimant need not already possess all evidence needed to prove the claim.

Regulation 92(3) provides minimum periods and does not replace the basic limitation rule. Regulation 92(3)(c) requires an actual publication; failure to publish does not indefinitely prevent time running where the claimant independently has sufficient knowledge. A defective publication is not necessarily a nullity, although its defects may affect when knowledge arose.

The claimant brought a procurement claim alleging that a contract for fire warden services had been awarded outside the limits of a framework agreement, contrary to Regulation 33(7) of the Public Contracts Regulations 2015. It also brought a separate breach of contract claim, which was not challenged summarily.

The defendants applied for summary judgment or strike-out of the procurement claim, contending that it was barred by Regulation 92. They relied principally on information said to have been known by 20 July 2023, alternatively on a letter received on 18 September 2023. The central issues were the operation of Regulations 92(2) and 92(3)(c), the significance of a Contracts Finder entry, the claimant’s actual or constructive knowledge, and whether the date of knowledge counted as day one.

1. Summary disposal. The court applied the summary judgment approach in Easyair Ltd v Opal Telecom Ltd and the procurement-specific guidance in Sita v GMWDA. The question was whether the claim was bound to fail, without conducting a mini-trial. Any realistic dispute of material fact had to be resolved at trial.
2. Regulation 92. Regulation 92(2) contains the basic limitation rule. Time runs from actual or constructive knowledge of facts which apparently clearly indicate an infringement. Knowledge that grounds for a claim have arisen is distinct from possession of all evidence required to prove it. Regulation 92(3) merely imposes applicable minimum periods and does not replace the 30-day period.
3. Publication. Regulation 92(3)(c) applies only where there has been a publication. It does not require a contracting authority to publish an admission that its decision was unlawful. A public Contracts Finder entry describing the decision as a framework call-off could constitute publication, even if the decision was later found unlawful or the notice was defective. Defects may nevertheless be relevant to whether and when the claimant acquired knowledge under Regulation 92(2).
4. Knowledge. The July correspondence created a compelling limitation case, but the context and source of the claimant’s information were incomplete. There was therefore a realistic factual issue as to whether sufficient knowledge existed by 20 July. There was also a realistic issue as to whether the claimant or its agents had actual or constructive knowledge on 18 September. There is no general rule requiring a recipient to read correspondence immediately or allowing a fixed grace period for consideration. Reasonableness depends on the circumstances.
5. Attribution and day one. The court expressed the view that knowledge of a solicitor specifically instructed to obtain and receive relevant procurement information could be attributed to the company. The court also considered, obiter, that “beginning with the date” in Regulation 92(2) includes the date of knowledge.
6. The defendants’ application for summary disposal failed because it was realistically arguable that the claimant acquired the necessary knowledge only on 19 September 2023. Costs were reserved for agreement or further submissions.