Cabinet Office launches consultation on time limits post-Uniplex

The Cabinet Office has launched a consultation on the implications for the UK of the ECJ’s ruling in the Uniplex case, and in particular on the time limits for bringing proceedings alleging a breach of the procurement rules.

Compliance with the decision in Uniplex v NHS Business Services Authority (C-406/08) is mandatory, the Cabinet Office said, but compliance could be achieved “in a variety of different ways”.

The case concerned the compatibility of the Utilities Contracts Regulations 2006 with EU law.

The 2006 Regulations – specifically Regulation 47(7) and Regulation 45(5) – required proceedings to be brought “promptly and in any event within three months from the date when grounds for the bringing of the proceedings first arose, unless the court considers that there is good reason for extending the period”.

However, the ECJ held that “in order to guarantee the effectiveness of the remedy”, the limitation period “should not start to run until the time when the applicant knew, or ought to have known, of the alleged infringement”.

It said the requirement to bring proceedings promptly – which gave the court discretion to dismiss an application even where the three-month limit had not expired – was inconsistent with EU law “because it is not precise and so makes the rules uncertain”.

Accordingly the UK procurement rules need to be changed so that the time limit runs from when the applicant knew or ought to have known of the infringement and to remove the requirement to act “promptly”.

The Cabinet Office is seeking views on:

• Changes to the linkage between when the time limits expire and when the claim form is deemed to be served by rules of court. It will also cover the linkage between the deemed services rules and the automatic suspension triggered by Regulation 47G(1) and (3)
• Transitional arrangements for the new rules, and
• Implications for the standstill period.

The consultation paper puts forward three options that would provide a definite time period within which to make a challenge. However, the term “promptly” would be removed in all three.

The options – the advantages and disadvantages of which the consultation paper assesses – are:

1. A 10/15 days period to challenge, running from the date of knowledge: this would be “clear and comparatively simple”. The court would have no discretion to extend the limit.
2. A challenge period running from date of knowledge, but fixed at longer than 10/15 days.
3. A 10/15 days period to challenge, but with a discretion to extend to either a period shorter than three months or to three months.

The Cabinet Office said its current view is that “the direct costs or financial benefits of either of the three new policy options to implement the Uniplex decision will be either difficult or impossible to predict”.

The consultation paper, which can be downloaded here, affects England, Wales and Northern Ireland. The deadline for responses is 19 January 2011.