Procurement experts: running out of time?

The deadline for bringing a challenge to a procurement process being run in accordance with the Public Contracts Regulations 2015 (PCRs) is tight – usually only 30 days from when you knew (or ought to have known) there was a problem.

An alternative our procurement experts have recently been asked about is whether it would be possible to challenge a decision made by a local authority by way of Judicial Review (JR) rather than under the PCRs themselves.

Whilst it is possible in some circumstances to do this - it is not that common for a number of reasons. The bar for succeeding in a JR claim is high: you have to show that an authority has acted illegally; irrationally or so unreasonably that no reasonable authority could ever have made the same decision; that there has been procedural unfairness in the methodology used; or that the authority has not acted in the way as to be expected as a result of their own words or conduct.

In addition, the JR rules state that if you are bringing the claim as an alternative to bringing a challenge under the PCRs you will need to show a good reason why you are not bringing your challenge pursuant to the PCRs, and if that reason is simply because you are out of time under the PCRs this will not usually amount to a good reason.  The time limit for bringing a JR claim is 3 months but ultimately this is not much more time when looking to issue a claim.  

Under the PCRs the Court has the power to extend the 30-day time limit up to 3 months where there is a good reason to do so. Therefore, if you have a good reason to extend the time limit under the PCRs this is usually the better route rather than issuing a JR claim. 

Most JR claims in relation to procurement exercises are brought by parties who do not have a direct interest in the contract being tendered – they are usually individuals or organisations who feel that the authority has not complied with the PCRs but do not have the standing to bring a claim under the PCRs.