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CJEU Ruling - UK Procurement Rules on Challenging Decisions are Illegal

C-406/08 - Uniplex (UK) Ltd v NHS Business Services Authority

The UK procurement rules requiring challenges to be brought “promptly and in any event within three months from the date when grounds for bringing proceedings first arose unless the Court considers that there is good reason for extending period within which proceedings may be brought” are incompatible with the EU Directive 89/665. In response to the questions referred to it by the High Court, the Court of Justice of the EU (CJEU), held that the time cannot start running from the date of breach of the applicable public procurement provisions, but rather should start from the date on which the tenderer knew, or ought to have known, of that infringement.  In addition, the term "promptly" is too vague and based on the discretion of the judge. Despite the fact that this ruling was looking at provisions under the old regime, it is still applicable to the Remedies Directive which came into effect on 20 December 2009.

The full text of the judgment and Opinion of the Advocate-General can be found here.

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