Precedent Procurement Cases
We do not propose to list the numerous examples of the European Courts of Justice and European Union Member States precedent cases.
As this is a specialist area of law there have been few Irish High Court precedent decisions to date. Of course, we are in a position to rely on previous case law prior to the Remedies Directive. Also, quite often decisions from the High Court in England and Wales are a useful guide in this area of jurisprudence.
We propose to set out some principles emanating from decisions from the following:-
European Court of Justice
- Public Authority must only take account of criteria such as Tenderer’s experience, manpower, equipment or ability to perform a contract when prequalifying a Tenderer and cannot take account of such qualitative criteria in awarding a contract thereafter.
- Directive 2004/18 dictates that a contracting authority may not stipulate at a later date weighted sub-criteria to be applied to award criteria. In other words to ensure transparency and fairness to all competitors the same weighted sub-criteria is to be utilised throughout an entire process.
- Time is deemed to run from when an applicant knew or ought to have known of the circumstances given rise to the cause of action or complaint.
England and Wales High Court
- The High Court has determined that once a claimant has knowledge of the basic facts gathered from information in respect of procurement process which would indicate, objectively, that it had an arguable claim, it must act. A claimant sought to extend the period to bring the challenge by three months. However the High Court ruled against it and confirmed it was not relevant that the deadline had only been missed by a few days.
- The Court of Appeal has concluded the High Court had correctly identified relevant matters as sub-criteria of published criteria. In accordance with EU Case Law, the Public Authority was not required to disclose the weightings that it had applied to these sub-criteria in evaluating the Tenders.
- There has been recent jurisprudence whereby the High Court demonstrated upon the application of Public Authorities in two cases their attitude towards lifting an automatic suspension imposed by the Remedies Directive on an award of a contract when a challenge is being processed under the Remedies Directive. The balance of convenience was deemed in both cases to favour the Public Authorities in proceeding with the contracts. An award in damages was deemed appropriate for the challengers. Hence a Public Authority will have to apply to the High Court to have an automatic suspension lifted once implemented under the Remedies Directive and each particular set of circumstances will dictate whether or not the High Court will grant same.
- A Public Authority was granted leave to enter a contract pending the outcome of an appeal against the procurement procedure. Northern Ireland High Court concluded that none of the grounds of challenge raised by the unsuccessful Tenderer gave rise to a serious issue to be tried. In any event, the balance of convenience was in favour of allowing the contract to be awarded without further delay.
Republic of Ireland
- A recent High Court application by a challenger was dismissed, the particular facts are not necessary to be summarised. However the High Court’s decision demonstrates particular Service Contracts listed in Schedule Part B do not apply to the principle of transparency and each set of circumstances will determine whether or not they apply. Importantly, the High Court has determined there is no obligation to publish minimum scoring thresholds for individual contract awards as Service Contracts under Part B. This restriction is somewhat modified in that the scoring methodology may well be published if it would amount to an inconsistent application or there was a change to the published criteria or scoring methodology may well influence how participants engage in the tender process.
- Essentially the definition of a Public Works Contract was determined by the High Court and it found where the essential obligation under the contract is the carrying out of works of construction/refurbishment character, it is this obligation that gives the contract its character. This was despite there being elements of supply or service involved. These were considered clearly incidental and ancillary to the main purpose of the contract which was activities listed in Schedule 1.