Would-be challengers and defending Contracting Authorities need to be aware of a number of unique timing factors, and the notoriously short timeframes, for the initial stages of procurement challenges. The Altiatech judgment usefully examines some of the key risk areas.

Summary

This judgment concerned whether Altiatech had complied with the tight time limits prescribed by the Public Contracts Regulation 2015 (“PCR”) and the Civil Procedure Rules (“CPR”):

1. in bringing its claim within time (‘issuing’ the Claim Form); and
2. subsequently particularising the details of its case (‘serving’ the Particulars of Claim).  

Birmingham City Council (“the Authority”) contended that the Claim Form was issued beyond the permitted time limit and/or that the Particulars of Claim were late and that in either event Altiatech’s claim should be ‘struck out’ (i.e. terminated by the Court).

The Court found that Altiatech had brought their claim within time. In particular, the Court held that Altiatech had brought its claim 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” (the general time limit under Reg 92(2) PCR).

The Court also considered some novel arguments as to why the timeframe for bringing a claim ought to have been 6 months if one of the remedies sought by the Claimant is so-called ‘ineffectiveness’ (i.e. that the awarded contract be set aside). It ultimately did not need to decide that point as the Claim was within the shorter 30 days limit in any event.

That 30 days had not started to run at the point Altiatech learned that a contract had been awarded to another supplier (Softcat).  The clock had only started from the later date on which the Authority had explained why it had terminated its contract with Altiatech and awarded the contract to Softcat, via a procurement route which had denied Altiatech the opportunity to bid for that contract (see below).  It was only at that point which Altiatech had a level of knowledge sufficient to “come to an informed view as to whether there has been an infringement” (as the 30 days test was articulated in Uniplex [2020]).

The Court did find that Aliatech had not provided its Particulars of Claim within the required time limit.  However, on the particular facts of this case, the Court was willing to grant so-called ‘relief from sanctions’ permitting late service of the Particulars. This is an important point for would-be challengers: not only must the Claim Form be issued in time, but the Particulars of Claim (which provide greater granularity of the facts and assertions forming that claim) must also be served within 7 days of issuing the Claim Form.  This is a very tight time limit for what is often a complex document to draft, and where the ‘service’ process is not necessarily straightforward.

More broadly, the facts underlying this judgment provide a useful illustration of some difficult choices faced by both would-be Claimants seeking to size up whether to bring a Claim, and Contracting Authorities (Defendants) who may be tempted to see if they can ‘run down the clock’ on any potential challenge. On both sides, there are risks in terms of what they say in ‘pre-action’ correspondence, particularly as a Court will often use such correspondence to infer when the Claimant “knew enough” start the 30 days clock.    

Relevant context for service dates of Claim Form and Particulars of Claim

Under a call off agreement, Altiatech provided cybersecurity services to the Authority. The contract was placed under the G-Cloud framework (one of the major Central Government technology frameworks) (the “Altiatech Contract”). The Altiatech Contract was terminated by the Authority, using a ‘termination for convenience’ provision. No reasons were given. The Authority subsequently procured replacement services by way of a direct award to Softcat under a different framework agreement to which Altiatech was not a party. It appears that the services provided were substantially the same as those provided by Altiatech under the Altiatech Contract.

On 7 September, the Authority published a Contract Award Notice in respect of the award of the new contract to Softcat. Altiatech expressed concerns regarding the lawfulness of the Authority’s conduct having also previously expressed that it was “at a loss” as to why the Altiatech Contract had been terminated, and it sought disclosure of the Authority’s reasons for termination. It was an important element of that correspondence that Altiatech was

• unequivocal about needing further information from the Authority in order to understand why it had done what it had done.
• Altiatech was expressly uncertain about whether it thought it had a claim, stating that if further explanation was not provided then it may be left with no option but to issue proceedings and seek immediate specific disclosure

In response, the Authority later disclosed on 7 October 2022 that it had terminated the Altiatech Contract because of concerns of improper conduct of the Authority’s own officers; that it had in fact found such impropriety in respect of other contracts managed by those officers; that it had not found any impropriety by or in respect of the Altiatech Contract; but that its decision to terminate the contract and to procure replacement services under a separate framework agreement (to which Altiatech was not a party) was for the purpose of “ensuring the Council had a clean slate”.

On 19 October, Altiatech issued the Claim Form which was sent by post to the Authority on 24 October. Therefore the crucial question was whether time had started running from the Authority’s 7 October disclosure (in which event Altiatech was well within the 30 day limit) or had arisen during the prior correspondence, in which Altiatech had certainly said it was minded to issue a Claim.  

When did the 30 day clock start ticking? 

Regulation 92(2) PCR requires a Claimant to issue proceedings, “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”.

The Court adopted the test set out in Uniplex (UK) Ltd v NHS Business Services Authority [2020] 2 CMLR 47 which confirms that the 30 day limitation clock runs from the date in which a prospective claimant has “come to an informed view as to whether there has been an infringement of the applicable provisions and as to the appropriateness of bringing proceedings.”  The Court summarised judicial attempts to strike a balance in determining how much knowledge is sufficient to “come to an informed view”.  

Waksman J rejected the Authority’s contention that the 30 day limitation clock had run from the date of the Contract Award Notice. In assessing whether Altiatech had indeed reached an informed view, the Court noted Altiatech’s correspondence had stated it was “minded to” or “may” commence proceedings, but that much depended on the provision of the requested information by the Authority. This enabled the court to conclude that the limitation clock had only started to run from the date of the Authority’s letter on 7 October. The claim was therefore issued within the relevant timeframe.

When do Particulars of Claim need to be served in procurement claims? 

The Claim Form was ‘deemed served’ on 26 October 2022, being the second business day from the date in which Altiatech had taken the relevant step of postage (Pursuant to CPR 7.5 and 6.14).  Particulars of Claim were posted on 8 November 2022 and pursuant to CPR 6.26 were deemed served on 10 November 2023. The date of deemed service fell 15 days after the service of the Claim Form.  This was because the Claimant had both miscalculated and misunderstood the very short timeframe within which Particulars of Claim must be served.

As an important procedural point in bringing procurement challenges, Waksman J held that for proceedings under the PCR 2015, the combined effect of Reg. 94(1) PCR and CPR 7.4 is that Altiatech were required to serve its Particulars of Claim no later than 7 days after the issue of the Claim Form. The rules of deemed service under CPR 7.4 have been regarded by the White Book as being a “trap for the unwary”, a point highlighted by the Court. This is because:

• Read in isolation, CPR 7.4(1)(b) appears to provide a 14 day period from the date of service of the Claim Form, in which a party may serve its Particulars of Claim.
• However, this rule is subject to CPR 7.4(2) which confirms that Particulars of Claim are to be served “no later than the latest time for serving a claim form”.
• In the regulated procurement, the trap is that Reg. 94 PCR requires that a Claimant (in this case Altiatech) must serve the Claim Form on a public authority within 7 days after the date of issue of the Claim Form.
• When reading CPR 7.4(2) and Reg. 94 PCR together, the Court therefore took the view that Particulars of Claim were required to be served no later than 7 days after issue of the Claim Form.
• As noted above, Altiatech issued the Claim Form on 19 October, so the Particulars had been served well beyond 7 days from that date, and where therefore late.

Waksman J acknowledged that this position meant that procurement deadlines were indeed “very tight but not impossible” noting the scope for a prospective claimant to make an immediate application for an extension of time in which to serve Particulars of Claim.

The Particulars of Claim were therefore late. However, on the facts, the Court held that it was appropriate to grant retrospective ‘relief from sanctions’.  The fact that the Court was prepared to grant such relief in this case is no indication of whether it might be prepared to do so in future cases.

Partial strike out of a claim

An important side note to this story is that notwithstanding Altiatech’s success in persuading the Court both that it had brought it Claim within time, and that the Court should grant relief from sanctions in respect of the late service of its Particulars, the defendant Authority did win a small victory in having two parts of Altiatech’s claim struck out.  

A party can successfully obtain partial strike out of a claim, even if a Claim is brought in time (or where relief is granted), where the Court holds that any aspect of the Claim does not have a “reasonable prospect of success”. The Court accordingly held that Altiatech’s claim under Reg. 24 PCR (management of Conflicts of Interest) and its part of its Claim which sought the remedy of a ‘declaration of ineffectiveness’ should be struck out as having no reasonable prospect of success.

Case: Altiatech Limited v Birmingham City Council [2023] 2 WLUK 296

This article was written by Zac Bourne, Lloyd Nail and Ian Tucker in Burges Salmon's Procurement Team, ranked as Band 1 in Chambers & Partners 2023