Birmingham City Council, R (on the application of) v Secretary of State for Transport
[2024] EWHC 1487 (Admin)
Altiatech Ltd v Birmingham City Council
16 February 2023
[2023] EWHC 1371 (TCC)
High Court
A company sued a city council for unfairly giving a contract to another company after ending its contract. The court said the company wasn't too late to sue because the council hadn't been upfront about its reasons, but dismissed some of the company's specific claims because it didn't have enough evidence.
Key Facts
- •Altiatech Ltd challenged Birmingham City Council's direct award of a contract to Softcat plc for cybersecurity software.
- •The Council terminated its contract with Altiatech for convenience.
- •The Council then awarded the contract to Softcat under a different framework agreement.
- •Altiatech claimed breach of equal treatment and transparency obligations under Regulation 18 of the Public Contracts Regulations 2015.
- •The Council applied to strike out Altiatech's claim or obtain summary judgment.
Legal Principles
Time limits for procurement challenges: proceedings must be started within 30 days of knowing or ought to have known grounds for proceedings arose (unless seeking a DOI, which has a 6-month limit).
Regulation 92(2), Public Contracts Regulations 2015
Standard of knowledge required for starting the 30-day limitation period: knowledge of facts that apparently clearly indicate, though they need not absolutely prove, an infringement.
Bromcom Computers Plc v United Learning Trust & Anor [2021] EWHC 18 (TCC), citing SITA UK Ltd v Greater Manchester Waste Disposal Authority [2011] EWCA Civ 156 and Uniplex v NHS Business Services Authority [2010] PTSR 47
Time limits for serving Particulars of Claim: within 7 days of Claim Form issue in procurement challenges due to Regulations 94(1) and CPR 7.4(2).
Regulation 94(1), CPR 7.4(2), Cemex v Network Rail [2018] PTSR 824, Citysprint UK Ltd v Barts Health NHS Trust [2021] EWHC 2618 (TCC)
Relief from sanctions for late service of Particulars of Claim assessed under Denton principles, considering seriousness of delay, good reason for default and overall circumstances.
Denton principles, Viridor Waste Management Ltd v Veolia ES Ltd [2015] EWHC 2321 (Comm), Cemex v Network Rail [2018] PTSR 824
Requirements for a direct award under a framework agreement: all terms governing provision of works/services/supplies must be set out, along with objective conditions for determining which economic operator performs (Regulation 33(8)(a)).
Regulation 33(8)(a), Public Contracts Regulations 2015
Outcomes
Altiatech's claim was not time-barred under Regulation 18.
Altiatech did not have sufficient knowledge of the facts to constitute a cause of action until the Council disclosed its reasons for terminating the contract with Altiatech on 7 October 2022. This information was essential to plead the claim.
Altiatech's application for an extension of time to serve the Particulars of Claim was granted.
The 15-day delay was not serious or significant, and there was good reason for the default (misunderstanding of the time limit). Denying relief would be disproportionate.
Paragraph 24 of the Particulars of Claim (alleging breach of Regulation 24) was struck out.
It disclosed no reasonable ground for a claim; the alleged apparent bias was subsumed within the Regulation 18 claim.
The claim for a DOI was struck out.
The claim lacked particularity and failed to demonstrate a breach of Regulation 33(11) as required to invoke the relevant ground in Regulation 99. The Council satisfied the conditions for a direct award under Regulation 33(8)(a).
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