Significant changes to the time limit for bringing legal proceedings under the Public Contracts Regulations 2006 (where the proceedings do not seek a declaration of ineffectiveness) are being implemented by the government with effect from the 1 October 2011. This flows from the decision of the Court of Justice of the European Union in Uniplex (UK) Ltd v NHS Business Authority C-406/08 in 2010.

According to the 2006 Public Contracts Regulations, a legal challenge should be brought promptly and in any event within three months of the ground for compliant first arising, subject to the Court’s discretion to extend time (reg 47(7)(b)). The amended regulation requires such proceedings to be started within 30 days beginning with the date when the economic operator first knew or ought to have known that grounds had arisen. The court has power to extend the time for good reason but it must not permit proceedings which have been started more than three months after the actual or constructive knowledge. Proceedings are deemed started when the claim form is issued.

The CJEU decision in Uniplex was that the time limit in the 2006 Regulations did not comply with the general principles of EU law regarding the effectiveness of national remedies. Although it is for each EU member state to establish the time limit, the time limit must comply with EU law. Under EU law, limitation periods must be sufficiently precise, clear and foreseeable in their effect and therefore one that is left to the court’s discretion did not comply with these requirements.

It was also held that it is only after the aggrieved bidder has been informed of the reasons for its elimination or failure to win the tender competition, that the bidder can reach an informed decision as to whether or not to bring a challenge. Time therefore, must start to run from the date of knowledge, rather than from when the ground for challenge first arose.