Brookhouse Group Limited v Lancashire County Council

This case confirms that where a claimant alleges an illegal direct award without an advertised process, the only way to reduce the time period for an ineffectiveness claim to 30 days is to publish a contract award notice.

Brookhouse Group Limited v Lancashire County Council [2023] EWHC 2921 (TCC) (17 November 2023) (bailii.org)

The dispute concerns a site part-owned by the Council (71%) and the claimant (29%). The Council awarded a contract to a third party to carry out development works on the site. It considered that it was entitled to award the contract via a strategic partnering agreement previously procured. It articulated this by letter to the claimant on 22nd September 2022. The claimant disagreed and brought an ineffectiveness claim under the Public Contracts Regulations 2015 on the basis of direct award without advert.

The Council asserted that the claim was out of time. They argued 30 days had elapsed since the claimant was provided with a “summary of the relevant reasons” for the purposes of Regulation 93(5). The claimant stated that a 6 month limitation period applied. They contended that the Council could not rely on regulation 93(5).

The Court found in favour of the claimant: a 6 month limitation period applied. Regulation 93 imposes this “long stop” period, which is only reduced to 30 days in two scenarios:

– a contract award notice is published (which did not happen here); or

– Regulation 93(5) applies (the economic operator has been informed of the conclusion of a contract and “the relevant reasons”)

It was held that 93(5) did not apply here as the Council’s letter of 22 September was not requested by, or given to, a “candidate or tenderer”. It was also stated that the letter did not “constitute a summary of the relevant reasons for the purpose of Reg 55(2)”.

This case confirms that where a claimant alleges an illegal direct award without an advertised process, the only way to reduce the time period for an ineffectiveness claim to 30 days is to publish a contract award notice. This case will now proceed to trial.