The below article was first published on Supply Management on Thursday 8 November 2012.
Turning Point Limited v Norfolk County Council
Turning Point tendered for a contract for a drug and alcohol treatment system being let by Norfolk County Council.
Bidders were provided with TUPE information, but Turning Point said it was insufficient. It asked questions seeking clarification, but the council did not provide any. When Turning Point submitted its tender it included a ‘note’ that it had assumed no redundancy costs and if this were to occur it would wish to enter further discussion. The council rejected the tender on the basis the note constituted a qualification or caveat, expressly prohibited by the ITT.
Turning Point issued proceedings arguing the council had not provided sufficient information; was wrong to consider the note a qualification; and should have sought clarification before rejecting the tender. It said these failings were a breach of the regulations and of an implied contract to act fairly towards Turning Point.
The judge agreed to strike out the application. The claims regarding failure to provide sufficient information were time barred. Turning Point had known when it submitted the tender at the very latest, the council would not provide it with further TUPE information.
The 30-day period for bringing a challenge ran from that date. Furthermore, the judge concluded the note was a clear qualification. The council had been entitled to reject the tender without seeking clarification.
What this means
This confirms a court is unlikely to find an obligation on an authority to seek clarification where there is no clear mistake in the tender submission.
It indicates courts will interpret the new 30-day limitation period for bringing a claim requirement strictly. In rejecting Turning Point’s argument it only required a “reasonable and proportionate” 14-day extension, the judge concluded an extension would only be permitted for a good reason “beyond the control” of a claimant. The case supports a clear message that a bidder must bring proceedings for a breach within 30 days of being aware of that breach, whether or not it is aware it has been unsuccessful.
However, judicial guidance over the level of TUPE information that must be provided during tender processes would be welcome.