Regulation 92 – General time limits for starting proceedings

Commentary

Regulation 92 PCR2015 establishes the general time limits for starting proceedings to seek remedies other than ineffectiveness derived from breaches of Part 2 PCR2015 or EU actionable procurement rules as the time limits for proceedings seeking ineffectiveness are established in Regulation 93 PCR2015.

In general, and in a simplified manner, proceedings must be started within 30 days beginning with the date when the economic operator first knew or ought to have known that grounds for starting the proceedings had arisen (Regulation 92(2). That is, economic operators have 30 days after the date the economic operator first knew or ought to have known about the breach. For the purposes of this Regulation, “knowing” depends on a number of different factors from the information passed by the contracting authority to the means used by it. However, the Court may extend the time limits imposed where it considers that there is a good reason for doing so (Regulation 92(4), but it must not exercise that power under so as to permit proceedings to be started more than 3 months after the date when the economic operator first knew or ought to have known that grounds for starting the proceedings had arisen (Regulation 92(5) PCR2015.

For discussion on the calculation of these time limits, see R Ashmore “Curing the “incurable”? The possibility of serving a technically defective claim form “out of time” as recognised in Heron Bros Limited v Central Bedfordshire Council” (2014) 23(4) Public Procurement Law Review NA134-NA139. Even if the case discussed was Irish (and hence subjected to different rules), the issue of knowledge in relation to time limits for bringing proceedings is addressed in an interesting way by P McGovern, “Application of the principle of transparency in stating criteria, and application of the concept of knowledge in relation to time limits for bringing proceedings: the case of Gaswise Limited v Dublin City Council” (2014) 23(5) Public Procurement Law Review NA145-NA148.

Last modified: December 6, 2016 by Pedro Telles

92.—(1) This regulation limits the time within which proceedings may be started where the proceedings do not seek a declaration of ineffectiveness.

(2) Subject to paragraphs (3) to (5), such proceedings must be started within 30 days beginning with the date when the economic operator first knew or ought to have known that grounds for starting the proceedings had arisen.

(3) Paragraph (2) does not require proceedings to be started before the end of any of the following periods:—

(a)where the proceedings relate to a decision which is sent to the economic operator by facsimile or electronic means, 10 days beginning with—

(i)the day after the date on which the decision is sent, if the decision is accompanied by a summary of the reasons for the decision;

(ii)if the decision is not so accompanied, the day after the date on which the economic operator is informed of a summary of those reasons;

(b)where the proceedings relate to a decision which is sent to the economic operator by other means, whichever of the following periods ends first:—

(i)15 days beginning with the day after the date on which the decision is sent, if the decision is accompanied by a summary of the reasons for the decision;

(ii)10 days beginning with—

(aa)the day after the date on which the decision is received, if the decision is accompanied by a summary of the reasons for the decision; or

(bb)if the decision is not so accompanied, the day after the date on which the economic operator is informed of a summary of those reasons;

(c)where sub-paragraphs (a) and (b) do not apply but the decision is published, 10 days beginning with the day on which the decision is published.

(4) Subject to paragraph (5), the Court may extend the time limits imposed by this regulation (but not any of the limits imposed by regulation 93) where the Court considers that there is a good reason for doing so.

(5) The Court must not exercise its power under paragraph (4) so as to permit proceedings to be started more than 3 months after the date when the economic operator first knew or ought to have known that grounds for starting the proceedings had arisen.

(6) For the purposes of this regulation, proceedings are to be regarded as started when the claim form is issued.