Addleshaw Goddard

UK 200 2013 position: 23

Closing JR loophole: time limits for challenging procurement decisions

The government has brought in new rules to close the judicial review (JR) loophole. Until 30 June, a losing bidder in a public procurement process sometimes had two options to bring a challenge to a decision: a claim under the Public Contract Regulations 2006, which had to be brought within 30 days from when the claimant knew or ought to have known of the grounds for its claim; or JR, where the deadline was three months.

If the bidder missed the first deadline, it could try the second. Indeed, Virgin Rail last year famously issued two sets of proceedings, one under the regulations and the other under JR. In this way, it was able to benefit from the favourable JR limitation period and also the favourable regulation remedies such as the automatic suspension prohibiting contract signing.

While useful for the bidder, this created uncertainty for contracting authorities, which could not feel entirely secure entering into public contracts until the three-month judicial review limitation period had expired…

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