Facts
Cambridgeshire County Council (“CCC”) launched a procurement for a framework for the provision of regulated homecare services for adults across Cambridgeshire. The framework had an estimated value of £928.08 million and a potential term of up to ten years. The Tender Notice was published on 15 July 2026 and directed suppliers to the In-Tend portal for the full conditions of participation.
At the first stage of the procurement, suppliers were required to complete a Procurement Specific Questionnaire and confirm that their adult homecare service held a Care Quality Commission (“CQC”) rating of “Good” or above (the “CQC Condition”). Suppliers that were unable to satisfy the CQC Condition would be excluded from the procurement.
Verity Healthcare Limited (“Verity”) was registered with the CQC but did not hold the required rating. Verity argued that the CQC Condition was not proportionate and therefore contrary to section 22 of the Act. In a letter dated 21 July 2026, Verity asked CCC to review the CQC Condition, arguing that suppliers should instead be permitted to demonstrate their ability through other objective evidence. In a response dated 11 August 2026, CCC rejected this challenge. Verity subsequently issued a claim and applied for interim relief on 17 August 2026.
Verity initially maintained that it first became aware of the procurement and the CQC Condition on 19 July 2026. However, its evidence as to when it became aware of the procurement subsequently changed as portal records emerged and differing accounts were given in witness evidence.
CCC applied for the claim to be struck out or, alternatively, for summary judgment on the basis that it had been brought out of time.
The Court’s decision
Section 106(2) of the Act requires proceedings of this kind to be commenced before the end of 30 days beginning with the day on which the supplier first knew, or ought to have known, about the circumstances giving rise to the claim. Mrs Justice Jefford held that Verity ought to have known of the procurement and the CQC Condition on 15 July 2026, being the date on which the Tender Notice was published. As such, the court concluded that the claim was issued out of time and accordingly entered summary judgment for CCC. An application for extension of time was not properly before the court, and the judge would have refused one in any event.
Given the decision in the strike out application, it was unnecessary to determine the application for interim relief. However, the judge explained that she would not have granted the relief sought in any event.
Key takeaways
(1) The limitation clock is likely to start when documents are published, not when they are read
The court applied the standard of the reasonably well-informed and normally diligent tenderer, commonly referred to as the “RWIND” tenderer, when applying the test for “constructive knowledge” under section 106(2) of the Act. In applying the RWIND test, the court determined “that Verity ought to have had knowledge of the relevant circumstances – that is the procurement and the condition – on the date of publication”. This was on the basis that Verity could have registered for notifications, become aware of the Tender Notice and promptly accessed the conditions of participation through the link provided.
The court did not consider that CCC was obliged to notify suppliers, including incumbents, which portal it would use. Find a Tender and other alerts offered routes to discovering the opportunity without prior knowledge of the portal.
Reliance on a weekly tender-alert service also did not protect Verity. A supplier receiving a weekly digest could receive information several days after publication, but there was no reason to exclude that interval from the 30-day time limit. The absence of clear evidence about Verity’s monitoring arrangements further undermined its position.
(2) Application of the test for interim relief
In her analysis of Verity’s application for interim relief, Mrs Justice Jefford held that the section 102 test requires the court to balance the public interest, the interests of suppliers and any other relevant matters when deciding whether to grant the relief sought. No single factor has automatic priority. In particular, the public interest in ensuring a lawful procurement does not mean that interim relief should ordinarily be granted whenever an arguable breach is established.
The judge agreed with the comments of HHJ Keyser KC in Parkingeye Ltd v Velindre University NHS Trust [2026] EWHC 1019 (TCC) (“Parkingeye”) that section 102(2)(a), concerning the public interest in ensuring procurements are conducted lawfully, “does not invite a consideration of the merits other than perhaps in a clear case”.
However, Mrs Justice Jefford questioned aspects of the approach in Parkingeye. In particular, she expressed doubt as to whether particularly persuasive public interests or overriding private interests were required before they would outweigh the public interest in ensuring a lawful procurement. In her view, section 102 requires the court to assess the weight to be given to each relevant factor on the facts of the particular case and then undertake an overall balancing exercise.
Applying that approach, the judge held that Verity’s challenge was arguable but not particularly strong. The argument that other suppliers may also have been adversely affected by the CQC Condition was self-serving and lacked evidential support. By contrast, numerous suppliers had submitted completed Procurement Specific Questionnaires and they had an interest in the procurement proceeding without further delay.
The practical consequences of delay also weighed against granting interim relief. CCC was working towards having a new care-services framework in place by April 2027, with a transition to new placements by the end of October 2027. Further delay threatened that timetable and could require new placements to be commissioned through individual spot contracts, resulting in additional expense, diversion of resources, market distortion and delays in service provision.
Finally, the availability of an adequate remedy in damages weighed against granting relief when considered alongside the other factors. Verity’s own evidence indicated that damages would adequately compensate it, and the court identified no additional claimant-specific interests requiring protection.
Taking those factors together, the court concluded that, had it been necessary to determine the application, it would not have granted interim relief.
(3) Waiting for a response to complaints does not protect against limitation issues
Verity had set out the substance of its challenge by 21 July 2026 but did not receive a response from CCC until 11 August 2026. Verity argued that this should be taken into consideration when assessing whether the claim issued on 17 August 2026 was in time.
The judge found no reason why the claim could not have been prepared and issued earlier. Even after receiving CCC’s response on 11 August 2026, Verity could have issued proceedings within the 30-day time limit.
(4) Establish a clear and accurate documentary chronology before serving witness evidence
Verity’s position on limitation was not helped by successive changes to Verity’s evidence. Portal logs showed it accessed the tender documents on 18 July 2026, whilst Verity’s witness maintained that the relevant sections had not been read until 19 July 2026.
The judge found that the evidence offered inconsistent or incomplete accounts of what had happened and when, and accepted that an adverse inference could be drawn. There was no realistic prospect that further evidence would establish the later knowledge date that Verity needed to show that its claim had been brought within the 30-day time limit.
Verity’s application had initially been issued on a “without notice” basis (i.e. without notice to CCC) and an immediate decision had been sought. The court did not decide that seeking this conduct in seeking an order based on flawed evidence independently justified striking out the claim. Nevertheless, it emphasised Verity’s responsibility to present a coherent case supported by accurate evidence and to provide full and frank disclosure when seeking an order on a without-notice basis.
Commentary
This decision is a reminder that suppliers should monitor opportunities proactively, work to the earliest plausible limitation date. Suppliers should not delay taking steps needed to protect their rights whilst waiting for responses to queries or pre-action correspondence.
From a contracting authority’s perspective, the case provides welcome clarity that limitation clocks are likely to start running from the date information becomes publicly available via published notices, not when those notices are read by potential challengers. Whilst this case examined limitation in the context of a Tender Notice, the same principles are also likely to apply to time limits for bringing claims in respect of information contained in other notices, such as notices advertising direct awards or contract modifications.
On interim relief, the court emphasised that the section 102 balancing exercise is fact-sensitive and requires competing interests to be balanced, with no single consideration automatically taking priority. This appears to be a slight softening of the approach taken in Parkingeye, which suggested that the public interest in lawful procurements would tend in favour of granting relief unless there are very persuasive public interests or overriding private interests in favour of refusing the relief / lifting the automatic suspension.
