A gritty tale

A Scottish court has recently considered the extent of a bidder's knowledge of a breach and when the clock started to tick for bringing a procurement claim. Jenny Beresford-Jones analyses the ruling.

In the recent case of Nationwide Gritting Services Ltd v The Scottish Ministers [2013], the Scottish court had to consider whether a claim was out of time or not.

The case turned on the question of whether a "suspicion" by the claimant that the contracting authority was in breach of procurement law was sufficent to start the clock running on the limitation period for bringing a procurement challenge (in this case, brought under the older regime, the limitation period was 3 months from the date that the claimant knew (or should have known) of the breach; now, it is of course 30 days from that point).

In 2010, the claimant contacted the contracting authority, Transport Scotland, and offered to supply grit to de-ice roads in Scotland. Transport Scotland did not pursue the matter. After a passage of some time, on 27 April 2012 the claimant heard rumours in the market that Transport Scotland had purchased and was storing grit. On 30 April 2012 the claimant asked Transport Scotland for details of the tendering process for this purchase and, having got no response, it sent a reminder email on 18 May 2012, saying it was considering legal action. Transport Scotland replied on 30 May 2012 saying that it had procured the grit under the negotiated procedure without a notice “for reasons of extreme urgency”.

On 28 August 2012, the claimant brought a claim that this was not justified and that a full procurement process should have been followed. Transport Scotland argued that the claim was out of time and that the claimant had had grounds to bring the claim before 28 May 2012 (being the date three months prior to the date the claimant actually issued the claim).

The court disagreed and held that, prior to 30 May 2012, when Transport Scotland confirmed it had indeed let the contract without a competition, the claimant only had suspicions and did not have the requisite amount of knowledge to start the clock ticking. Prior to that point, for all the claimant knew, the supply of grit might have been made under a legitimate procurement process. As such, the claim was (just) in time.

Having enjoyed a three month limitation period in the wake of the Uniplex case, claimants are now operating within a more challenging environment, following the recent reduction in the limitation period to 30 days. This is a relatively short period of time during which a claimant needs to gather the evidence about the breach and make the decision to take legal action, and prepare the claim form. Another very recent case, Corelogic Ltd v Bristol City Council [2013], has starkly demonstrated the unwillingness of the Court to allow claimants to amend a claim form to add new claims after issuing it.

This case against Transport Scotland, however, is a nugget of good news for claimants, as it underlines the fact that the clock will only start to tick once it is possible for the claimant to have knowledge of an actual breach. A "mere suspicion" is insufficient.

Jenny Beresford-Jones is a Professional Support Lawyer at Mills & Reeve. She can be contacted on 0121 456 8361 or by This email address is being protected from spambots. You need JavaScript enabled to view it.. This article first appeared on the firm’s Procurement Portal.