Order 84A of the Rules of the Superior Courts
On 8 September, the timeframe for reviewing the award of public sector contracts was clarified by S.I. No. 420 of 2010 (the "S.I."). The S.I. substituted a new Order 84A in the Rules of the Superior Courts so that it is now consistent with European law.
Order 84A now provides that the timeframes are those set out in Regulation 7 of the European Communities (Public Authorities' Contracts) (Review Procedures) Regulations 2010 and the European Communities (Award of Contracts by Utility Undertakings) (Review Procedures) Regulations 2010 (together the "Remedies Regulations").
Proceedings to review a public sector contract must be commenced 30 calendar days from when the claimant "knew or ought to have known" of the alleged infringement. The European Court of Justice ("ECJ") in its judgement in the Uniplex (UK) Limited v NHS Business Services Authority, Judgement (Case C – 406/08) set out that the limitation period should start to run from the date on which the claimant knew, or ought to have known, of the infringement of the procurement rules.
The 30 day timeframe applies to various applications to the High Court as follows:
interlocutory orders to correct an alleged infringement or prevent further damage to an applicant's interests, including measures to suspend a contract award procedure or the implementation of any decision taken by a contracting authority; the review of a contracting authority's decision to award a contract, or, the award of a contract subject to the EU public procurement rules; the review of a decision (including an interim decision) of a contracting authority during a contract award procedure subject to the EU public procurement rules; a declaration that a contract is ineffective (other than illegal direct awards). In the case of an illegal direct award of a contract where no notice has been published in the Official Journal of the European Union, proceedings for ineffectiveness may be commenced within 6 months after the contract is concluded.
It is important to note that the High Court has discretion to extend the 30 calendar days time period where it considers there is good reason to do so. Therefore, this still leaves some uncertainty on time periods as it is not clear what the High Court will determine are good reasons for an extension of time.