A developer has won a fight to bring a procurement challenge to the decision to award a leisure centre contract to a rival, despite a failure to comply with a strict time limit for serving the claim form.
Edwards-Stuart J rejected an application brought by Central Bedfordshire Council to strike out the claim, ruling that exceptional circumstances justified an extension of the seven day time limit in regulation 47F(1) of the Public Contracts Regulations 2006.
Heron Brothers Ltd will now be able to pursue its procurement challenge in which it claims damages and a declaration of ineffectiveness in respect of the award of a contract by the council for the construction of a leisure centre in its area. The project is already underway.
Heron Brothers was notified that the contract had been awarded to another bidder by a letter dated 26 September 2014, and on 31 October sent unsealed copies of the claim form and particulars of claim to the council and the court.
The court posted the issued claim form and particulars on 10 November for service, but they were not deemed served on the defendant until 18 November, the second business day after they were posted.
The regulations state that a claim form has to be served within seven days of issue, and do not make any provision for an extension of time.
But the judge ruled that he nevertheless had a discretion to do so, because the rules on deemed service had the effect of reducing that seven day period to only five days which he felt the draughtsman of the 2011 regulations had failed to appreciate.
He said: “To reduce the already short period of seven days to five days, which is the effect of the defendant’s construction of regulation 47F, has the potential in my view to create difficulties.
He said that regulation 47F must be read so that service within the seven-day period is achieved if completion of the step required to effect service occurs within that period. That means that, as long as they are posted within seven days, the time limit is met.
He added: “Whilst seven days is not generous, it does at least provide a small amount of leeway for unanticipated delay.”
He found that Heron Brothers did serve the claim form within seven days of starting proceedings as regulation 47F(1) required, but it did not serve it in accordance with the rules of court in that it had not been sealed and did not bear the claim number.
However, he considered that it would be fair and proportionate in his case to “cure the irregularity” so that these proceedings could be regarded as having been properly brought.
He said that neither of these shortcomings had deprived the council of any knowledge of the nature of the claim against it or of the fact that proceedings had been or were about to be started.
Heron Brothers Ltd v Central Bedfordshire Council Technolgy & Construction (Edwards-Stuart J) 20 March 2015
Sarah Hannaford QC (instructed by Quigg Golden Legal Ltd) for the claimant
Jason Coppel Esq, QC (instructed by Geldards LLP) for the defendant
