Uniplex challenges NHS Business Services Authority and the European Court of Justice tells the to change its procurement legislation.
The ECJ has told the courts that its procurement legislation is inconsistent with the EU Remedies Directive and the courts may not apply the Regulations while they are inconsistent with EU law.
Current regulations implementing the EU's Remedies Directive provide that any challenge to a decision by a contracting authority to reject a tenderer must be made "promptly", and in any event within three months of the date when grounds for the bringing of the proceedings first arose. This gave rise to uncertainty about when the period runs from but the decision of the ECJ now gives certainty to when challenges can be brought.
The ECJ has made clear that a tenderer has three months from the date it knew or ought to have known about an infringement of the procurement rules to make a claim.
Uniplex had applied for a contract with NHS Business Services and took a case against the NHS when it was not awarded the contract. The High Court asked the ECJ whether the period within which Uniplex had to take action began when it found out about the alleged infringement of the procurement rules or from when the decision to reject Uniplex was taken. The ECJ ruled that the time period should only start to run when a company knows that it has been rejected and it knows the circumstances of that rejection. This is simply because only then can it be at all aware that rules may have been broken.
