Whilst the title suggests we are about to regale you with the latest meanderings of the White Rabbit in Wonderland, this is but a ploy to inform you about the latest deliberations of the High Court on the time limit for bringing a public procurement challenge.

In Boxxe Ltd v The Secretary of State for Justice [1], Mr Justice Constable agreed to lift the automatic suspension in relation to a mini-competition for a call-off contract for the provision of digital and audiovisual (AV) equipment pursuant to Regulation 95(1) of the Public Contracts Regulations 2015 (PCR 2015).  

When assessing whether there was a serious issue to be tried, the judge considered the arguments put forward to determine whether the claim was brought out of time. Regulation 92 of the PCR 2015 provides that (except for proceedings seeking a declaration on ineffectiveness):

“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”.

Arguments put forward
The defendant relied upon a line of case law that indicates that where the period within which the act is to be done is expressed to be a period beginning with a specified day, then the specified day must be included in the period [2]. It also cited Civil Procedure Rules (CPR) Rule 2.8 in the White Book which states:

"When a step has to be taken within a period described as 'beginning with' a specified day, then that day is included in the period; but if the period is described as running 'from' or 'after' a specified day, then that day is not included in the [period]". 

It was also highlighted that in Access for Living v London Borough of Lewisham [3], it was common ground between counsel that the time for calculating the 30-day expiry under Regulation 92 was inclusive of the day on which the economic operator first knew or ought to have known that grounds for starting the proceedings.

The claimant, on the other hand, highlighted the distinction in the cases between the approach to the issue of a claim and to the service of a claim and alleged (referring to a practitioner textbook on the point) that the cases referred to by the defendant were inapplicable to the issue of a claim form and to the commencement of proceedings under the PCR 2015. They also referred to the latest version of the Limitation Act 1980 which arguably uses both the language of 'from' and 'beginning with' interchangeably and highlighted how the language of the original version of the Limitation Act was generally that actions shall not be brought after the expiration of a certain period 'from' the date on which the cause of action accrued. A European Council Regulation 1182/71 was also cited which governs the calculation of time periods in certain EU instruments, including the Public Sector Directive from which the PCR 2015 derive and is now reflected in Regulation 2(3) of the PCR 2015 which provides:

“where the period is to be calculated from the moment at which an action takes place or other event occurs, the day during which that action takes place or that event occurs is not to be counted in the calculation of that period”. 

It was acknowledged by both sides that the above provision does not apply to Part 3 of the PCR 2015 in which Regulation 92 resides (only to Part 2). The claimant argued that it was still relevant as a matter of construction and highlighted the requirement to promote certainty, as identified in the Uniplex case [4], in particular, the requirement that a system of limitation periods should be 'sufficiently precise, clear and foreseeable to enable individuals to ascertain their rights and obligations'. 

It is interesting to note that with regard to claims for ineffectiveness (i.e. claims for contract set-aside that are also found in Part 3 of the PCR 2015), the time limit for bringing a challenge is expressly stated to commence 'the day after' the relevant trigger event.

As this case was only concerned with the lifting of the automatic suspension, the judge did not reach a final decision on this point and merely held that 'the matter is not so clear cut as to conclude that there is not a serious issue to be tried'. The ultimate determination of the issue was deferred to the strike-out application that had already been issued by the defendant.

Comment
This judgment may cause some surprise and concern amongst both contracting authorities and suppliers about precisely how to calculate the challenge period for bringing a general procurement challenge. If the strike-out application proceeds, we will hopefully receive some clarity on this point. In the meantime, not including the date of the trigger event when calculating the challenge period could mean that a supplier would be 'late for a very important date' and find its challenge has been brought on the dreaded day 31 instead of day 30 or at least having to argue against this interpretation.  

[1] Boxxe Ltd v The Secretary of State for Justice [2023] EWHC 533

[2] e.g. Zoan v Rouamba [2000] 1 WLR 1509 and Wang v University of Keele [2011] ICR 1251

[3] Access for Living v London Borough of Lewisham [2021] EWHC 3498

[4] Uniplex (UK) Ltd v NHS Business Services Authority [2010] PTSR 1377