Judicial review likely to remain relevant means for challenge under UK Procurement Act

The availability of judicial review as an alternative or parallel recourse in the context of procurement challenges has long been the subject of judicial and industry debate and focus.

Parallel judicial review proceedings and claims under the Procurement Act

It is well-established that judicial review is a remedy of last resort. Applications for judicial review will be refused where the party has an adequate remedy elsewhere, including under the Procurement Act 2023 (178 pages/2 MB). Despite these constraints on recourse, judicial review in certain circumstances remained relevant under the procurement regime in place before the Act came into effect.

To assist parties in this position, the Technology and Construction Court addressed this subject in its guidance note on procedures for public procurement cases. The court recognises that parties may bring parallel proceedings for judicial review if, amongst other reasons, their right to bring a claim under the Public Contracts Regulations 2015 (PCR), one of the sets of procurement rules that the Act has replaced, is or may be disputed. Whilst an update to the guidance to reflect the Act has not yet been issued, it is anticipated that the court’s updated guidance will remain substantially the same on this point.

Time limits and timing

As was the case under predecessor legislation, the time limits for bringing claims under the Act are significantly shorter than for other types of claims - for example, a general claim for damages under a contract. Most types of claim under the Act must be brought within 30 days, beginning with the date on which the supplier first knew, or ought to have known, about the circumstances giving rise to the claim.

Under Civil Procedure Rule (CPR) 54.5, claims for judicial review must be brought without undue delay and in any event within three months of the decision giving rise to the claim. At the same time, CPR 54.5(6) reduces this period to 30 days starting from actual or constructive knowledge of the alleged breach, and disapplies the “promptness” requirement in order to align judicial review procedural rules that relate to decisions governed by the PCR with the equivalent time limit provisions in the PCR.

CPR 54.5(6) has not yet been amended to refer to the Act, and it is not clear at the time of writing whether any amendments are proposed.

Practical considerations when bringing parallel proceedings under the Act and by judicial review

Where a party elects to bring proceedings by way of judicial review in parallel with proceedings under the Act, they will have to pay additional issue fees, the amount of which will depend on the nature of the relief sought in the judicial review proceedings.

Pleadings must also meet the requirements of pleadings for judicial review. Ordinarily, this will involve drafting a separate set of proceedings for the judicial review claim.

The claims under the Act and for judicial review would be issued in separate courts. Claims under the Act will generally be brought in the Technology and Construction Court and a judicial review claim must be issued in the Administrative Court. Each of these courts have their own district procedures and requirements, which are expanded upon their own court guides. The provisions as they stand provide for case management and determination of procurement challenges and judicial review claims in the Technology and Construction Court by a judge who is also a designated judge in the Administrative Court, unless this is deemed inappropriate.

How new obligations introduced by the Procurement Act may be susceptible to judicial review

The Act introduces several new obligations that apply both during and after a procurement process. The uncertainty surrounding these new provisions may make it ripe ground for challenges to be raised, including by way of judicial review. 

Examples include:

• Debarment. The relevant ministers are given new statutory powers to debar suppliers. The consequences of being placed on the debarment list are potentially significant for any suppliers on the list, so this is an area in particular that may attract much contentious attention. The exercise of these powers could be challenged via judicial review proceedings to the extent that a course of action did not arise under the Act, for example if a supplier wished to raise legal arguments other than that the minister made a material mistake of the law.
• Fall out resulting from the non-publication of a termination notice in circumstances where there might be doubt as to whether the challenger has standing to challenge the relevant contract authority’s decision not to terminate a particular contract and publish a termination notice.

This is a space to watch closely in the coming months and years as the issues play out in claims heard by the courts, and in any possible guidance that may be issued by the court. 

The Administrative Court Guide (250-page / 1.77MB PDF) is available online.

Co-written by Will Lumb of Pinsent Masons.