The Technology and Construction Court has dismissed procurement and judicial review claims over a multi-million pound contract for the supply and maintenance of fleets of tractor cabs and trailers to a council-owned operator of waste processing facilities.
The claimant in Riverside Truck Rental Ltd v Lancashire County Council  EWHC 1018 (TCC) is the current supplier to Lancashire Renewables. The existing contract comes to an end in October 2020.
In September 2019 the county council commenced the procurement process in relation to a replacement contract for the provision of vehicles from October 2020.
Riverside submitted a tender for the new contract but on 29 November 2019 it was told that its tender had been rejected as failing to comply with the terms of the invitation to tender.
This was because the ITT included as a "mandatory requirement" in the Tractor Unit Specification the provision that the Cab Type was to be a "Sleeper Cab" with "Single Bunk, standing height". The county council had found the claimant's tender to be non-compliant because the interior height of 1,600mm proposed by Riverside did not "constitute standing height".
The interested party, Monks Contractors, was the successful tenderer. It had tendered a price of £7,878,000 as opposed to the price of £6,991,000 from the claimant.
In January 2020 the claimant commenced two sets of proceedings. It issued in the Technology and Construction Court a claim alleging that the defendant council had broken its duty under the Public Contracts Regulations 2015 and seeking a declaration and damages in respect of the alleged breaches ("the Procurement Claim").
At the same time it commenced proceedings in the Administrative Court seeking judicial review of Lancashire’s decision to disqualify it from the procurement process ("the Judicial Review Claim").
The claimant did not concede that either set of proceedings was commenced out of time but to guard against a conclusion that they were out of time it issued applications for extensions of time in both claims.
The matter came before His Honour Judge Eyre QC for determination of the applications for extension of time. That hearing was conducted remotely by way of a Skype video hearing.
The judge said it had been hoped to conduct the oral permission hearing in respect of the Judicial Review Claim at the same time “but the practicalities of conducting the remote hearing (in particular initial difficulties in connexion and the additional time taken by such a hearing as opposed to one conducted face to face) meant that was not possible”.
HHJ Eyre QC said the questions he had to determine in respect of both the Procurement Claim and the Judicial Review Claim were:
i) Whether the claim was issued either out of time so as to fail in limine in the absence of an extension or in time so as to have no need of an extension of time.
ii) Whether there was power to extend time. In relation to the Procurement Claim this depended on determining whether the claim was caught by the prohibition on extension contained in regulation 92 (5). In respect of the Judicial Review Claim the question was the extent to which the general power of extending time contained in CPR Pt 3.1(2) (a) was available.
iii) If there was a power to extend time whether it should be exercised in the claimant's favour.
The judge rejected the claimant’s contention that time only began to run for the Procurement Claim on 10 January 2020 when Riverside learnt the price of Monks’ tender, saying that that argument could not be sustained.
“It is true that 10th January 2020 was the date when the Claimant knew the potential value of its claim. It was then that the Claimant was able to conclude that pursuit of the claim might be worthwhile commercially,” he said.
“Nonetheless the breaches on which it relies had occurred before then; those breaches had caused loss or at the very least the risk of loss; and the Claimant knew or ought to have known that grounds for starting proceedings had arisen well before 10th January 2020. The Claimant had said on 2nd December 2019 that the circumstances of the Defendant's actions pointed to a legal challenge to the tender process; on 12th December 2019 it said that counsel had been engaged and that proceedings would be commenced within a week; and on 18th December 2019 a detailed letter of claim was sent from solicitors threatening proceedings.”
HHJ Eyre QC concluded that to the extent that the claim alleged a breach of duty in relation to the form of the Invitation to Tender it was not only out of time but outside the period within which an extension could be granted.
The larger part of the claim alleged breaches occurring at the time of the Rejection Decision on 29 November, however. The judge said the claim was out of time in that regard but the three-month limit imposed by regulation 92(5) had not passed and an extension could be granted if appropriate.
The judge said that none of a range of matters set out by the claimant amounted of itself to a good reason for extending time.
He also considered them as a combination of factors taking a broad approach to see whether in the circumstances seen as a whole there was a good reason for extending time.
“In that exercise it is relevant that the Claimant was not pointing to matters outside its control as having prevented it from commencing proceedings in time. The reality is that the Claimant failed to start the Procurement Claim in time because it adopted a mistaken view of the appropriate line of challenge and of the applicable time limits and because it was not minded to commence proceedings until it knew whether or not it would have been the successful tenderer if it had not been excluded because until then there was a prospect that the proceedings would not be worthwhile commercially,” HHJ Eyre QC said.
“None of that amounts to a good reason for an extension and I have concluded that even when the matter is viewed in the round there is no good reason for an extension and so the application for an extension must fail.”
Turning to the Judicial Review claim, the judge also rejected the claimant’s contention that this was not out of time and that time only began to run on 10 January 2020.
He rejected a contention by the QC for Lancashire that an extension could only be granted if the claimant had shown a good reason of the kind considered in relation to procurement claims.
HHJ Eyre QC found that the application for the extension of time of the Judicial Review Claim was to be considered in the light of the principles governing the extension of time for judicial review claims generally albeit doing so in the context of a procurement process where there is a particular public interest in the speedy resolution of disputes.
The judge found that in the circumstances “there was no reasonable objective excuse” for the failure to issue the Judicial Review Claim in time, however.
“As with the Procurement Claim the reality is that the claim was issued out of time because the Claimant failed to appreciate that the relevant time limit was 30 days from 29th November 2019,” he said.
The judge dismissed Riverside’s contention that public interest warranted an extension of time. He also found that “at the very lowest” there was a real risk of prejudice to Monks by reason of the delay in the commencement of the proceedings.
HHJ Eyre QC concluded: “The effect of this is that both claims are out of time and that in neither case is an extension of time appropriate.”