BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!
 |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | |
High Court of Ireland Decisions |
||
|
You are here: BAILII >> Databases >> High Court of Ireland Decisions >> P.J. Walls (Civil) Ltd. v. Aer Rianta CPT. [2005] IEHC 19 (26 January 2005) URL: http://www.bailii.org/ie/cases/IEHC/2005/H19.html Cite as: [2005] IEHC 19 |
||
[New search] [Help]
Neutral Citation No: [2005] IEHC 19
No. 2003/17 JR
BETWEEN/
APPLICANT
RESPONDENT
DECISION of The Master of the High Court delivered on the 26th day of January, 2005.
These proceedings are brought pursuant to the European Communities (Review Procedures for the Award of Contracts by Entities Operating in the Water, Energy, Transport and Telecommunications Sector and Public Works Contracts) Regulations 1993 (S.I. no. 104 of 1993) which provide that the High Court shall review the decisions taken by awarding authorities in these sectors. The relevant "utilities" Directive is 93/38 EEC and the "Remedies" Directive is 92/13/EEC. The S.I. provides for "review" in accordance with the conditions set out in the said directive. European case law in this area confirms that awarding authorities enjoy a wide discretion as to the criteria by which tenders are to be assessed and establish "manifest error" as the only ground for annulment of the award. Fennelly J. in his judgment in SIAC v. Mayo County Council [2002] 2 I.L.R.M. at p. 401, helpfully observes that "the word 'manifest' should not be equated with any exaggerated description of obviousness", and notes that "a study of the case law will show that the Community Courts are prepared to annul decisions, at least in certain contexts, when they think an error has clearly been made".
The SIAC case is significant because it signalled that the review standard in these cases is not the Common Law Judicial Review standard (Wednesbury/O'Keeffe). It was on this point that the decision of the High Court (Laffoy J.) was found to be in error. Fennelly J., at p.205 of his judgment aforesaid, expressed the view that application of the more restrictive standard would "run the risk of not offering what the remedies directive clearly mandates, namely, a judicial remedy which will be effective in the protection of the interests of disappointed tenderers".
In case C-120/97, Upjohn [1999] ECRI 223 the EC Court explained that a review of this sort the Court "must restrict itself to examining the accuracy of the findings of fact and law made by the authority concerned and to verifying, in particular, that the action taken by that authority is not vitiated by a manifest error or a misuse of powers and that it did not clearly exceed the bounds of its discretion… National procedure for judicial review must enable the court…effectively to apply the relevant principles and rules of Community Law". Fennelly J. points out that the relevant principles include "equality, transparency and objectivity" and that although the awarding authority, having correctly applied such principles, may have discretion, the permitted margin of discretion is not unlimited and does not absolve it from explaining its choice.
There are many recent decisions of the Irish Supreme Court which clarify the scope of discovery in judicial review applications. In particular I refer to Kilkenny Community Communications Co-operative Society v. Broadcasting Commission of Ireland [2004] 2 I.L.R.M 170 and Carlow/Kilkenny Radio Ltd. v. Broadcasting Commission of Ireland [2003] 3 IR 528. (Reference should also be made to O'Caoimh J's. judgment in Shortt v. Dublin City Council [2003] 2 I.R.69). All of these deal, however, with judicial review in accordance with the domestic law standard, and are of little use in discovery applications in cases under the remedies directive.
We are, therefore, in uncharted waters. Fennelly J., again at p. 425, puts it succinctly: "The function of the courts is to guarantee legality, though that notion itself has a number of elements, some procedural and some substantive".
The matter I am dealing with is an application for discovery in review proceedings in which the applicant complains of fifteen separate and distinct breaches of the utilities directive. If I can attempt to summarise them, they comprise complaints that-
(a) the applicable award criteria were miscalculated and/or applied variously not as previously notified to the applicant,
(b) the price criterion was either omitted or given a weighting which offended "the principles of openness, transparency, proportionality and non-discrimination underlying the Utilities Directive",
(c) the respondent breached the principle of equality and favoured the successful tenderer by significantly amending (for it alone) the scope of the works and risk profile, in effect, changing the specification.
(d) the opportunity to tender on an equal footing with other tenderers was denied the applicant as a result of a failure to advise in advance as to the weightings for criteria and a want of transparency and objectivity in the respondent's scoring method,
(e) awarding 0% to the applicant's "programme" was an error,
(f) the contract was awarded on the basis of a non-compliant tender,
(g) the award was unreasonable, and
(h) post award procedural irregularities.
The applicant submitted a tender for the specified works – a runway – in the sum of €7.85 million but was unsuccessful. The claim for damages is in the sum of €785,000 for profit on the contract and contribution to overheads plus €40,000 approximately for the costs of tendering.
The applicant grounds its case in respect of (b) above solely on the basis that the successful tender was in the sum of €10.8. In effect it is saying that this case makes itself; that it's self evident.
Equally self evident is the basis of the matter referred to at (a). The applicant complains that "capital costs" and "programme" (two "criteria") were given equal weighting, one being between zero and forty, and the other between ten and fifty marks: each, consequently, accounting for forty marks.
The applicant became aware of this above irregularity when in these proceedings, the respondent exhibited an award "matrix". This matrix, and specific information recorded therein, is the evidence the applicant has in respect of two other complaints it makes, namely (d) and (e) above. It asserts that European Law requires contracting authorities to provide the weightings for the award criteria it intends to use to tenderers and to ensure that the award criteria would be clearly understood by all tenderers.
The successful tender is the focus of two clear allegations. The applicant found evidence that the tender was non-compliant in that the hours proposed to be worked by this tenderer did not conform to those specified. It found this evidence in the respondent's affidavit sworn herein on March 3rd, 2003.
Secondly, the applicant, at (c) above, suspects an irregularity from the fact that the project was altered to suit the successful tenderer. This is in effect admitted by the respondent, but it submits that the alterations were made after the completion of the tender process.
It is of some assistance at this point in the analysis to pause and look again at the SIAC case for guidance.
In that case the Supreme Court ultimately upheld the High Court dismissal of the application but did so because the argument raised before it, after the A.177 reference had been completed, was to the effect that the criterion applied in the award – the "ultimate cost of the contract" – was not one of the award criteria. This case had not been argued in the High Court. Prior to the A.177 reference the applicant's case had been that the engineer's opinion was subjective and demonstrably incorrect, but the trial judge had formed the view that the County Council had "as it was entitled to do under the Directive, assumed a discretionary power of selection which was largely predicated on the exercise of professional judgment based on professional expertise".
The Court of Justice ruled that the Directive "must be interpreted as permitting an adjudicating authority which has chosen to award a contract to the most economically advantageous tenderer (my emphasis) to award that contract to the tenderer who has submitted the tender the ultimate cost of which, in the professional opinion of an expert (my emphasis again) provided that…the professional opinion was based in all essential points on objective factors regarded in good professional practice as relevant and appropriate to the assessment made".
Obviously this present case (unlike SIAC) is not about an award determined by price (or cost) as the one and only criterion. Here we have a number of award criteria and a weighting mix which itself must survive objective analysis. The "matrix" above referred to is a sort of mechanical equivalent of the professional expert referred to by the European Court. The "matrix" should, in other words, reflect good professional practice in the factors included, in their weighting, and in the marking actually given in respect of each, and to each tenderer.
So in relation to the matrix, the criteria, weighting, and the marks, we have clear evidence available to the applicant which would in the absence of any explanation, from the respondent, entitle the applicant to demand the reliefs it seeks. It is, in a slip and fall case, the plaintiff's own evidence of a wet and slippy floor. But what if the occupier seeks to hold off judgment on the basis that it's cleaning system was reasonable? Then the plaintiff is surely entitled to seek discovery of the defendant's records of such system.
But there is another feature of the matter which the Court may choose to investigate. (Perhaps more correctly, make that: a feature which cannot at this stage be safely regarded as one which will not be investigated). It is the matter of the sequence of events. Was the matrix devised after the event? Were the significant changes in specification (date of commencement, site access) which were agreed after the contract was awarded, already in contemplation (though not set in concrete!) prior to such award? Clearly, the winning tender must (when one considers the price) have been submitted either by a very foolhardy contractor, or one who was remarkably confident, and the Court will probable wonder why. (In the SIAC case, the price difference was £130,000 on a contract of £5½ million). In the SIAC decision Fennelly J. concluded that the County Council "followed objective and objectively verified criteria". He also said that "the Courts must exercise their function of judicial review so as to make the principles of the public procurement directives effective".
In turn, discovery must be ordered so as to enable the Court to exercise its said function effectively.
The applicant seeks 11 categories of documents. I will order some as drafted, some as amended by me, add a couple of my own drafting and refuse the balance, as follows:
1. The Tender submitted by Clare Civil Engineering together with the programme, schedules, bill of quantities, resource histograms, plant schedule, drawings.
2. The tender submitted by C&M Construction Limited to include the C&M programme together with any accompanying documentation to include the schedules, bill of quantities, resource histograms, plant schedule, drawings.
3. Final reports made by the pre-qualification assessment team; tender assessment reports completed in relation to the contract to include: all supporting documentation attached to such report and final reports made by the tender award assessment team and the report made to the Board of the respondent recommending the award of the contract to CCE and eliminating all other tenderers.
4. Internal communications of the respondent relevant to the bringing into being of the award matrix or outlining the reasoning behind the creation and application of the scoring methodology; tender award matrices from other contracts from which the respondent says the present matrix was adapted; draft versions of the matrix framework and draft versions of the application of the marks to the matrix itself; any assessment or report made by the evaluation panel on the days the matrix was scored, including minutes of any meeting or discussions had between the parties conducting the scoring.
5. All documentation which relates or pertains to the modification by the respondent of he contract awarded to Clare Civil Engineering to include; internal communications between employees of the respondent in this regard, minutes of internal and external meetings (including minutes of the meeting held between CCE and Aer Rianta on 10the October, 2002 to discuss site access and storage of spoil) with any parties involved in the modification; any risk assessment carried out by the respondent in relation to safety issues; all documentation which relates to the agreement between the respondent and Clare Civil Engineering to commence works on the haul road on 14th October, 2002.
6. Any memorandum of or correspondence (whether dated before or after
the award) referring to any exchanges between the respondent and Clare Civil Engineering prior to the 29th November, 2002 concerning –
(a) site access (clause 2.04 of the specification)
(b) disposal of soil (clause 1.40)
(c) the commencement of construction of an access route on 14th October or any other date before 29th November, 2002
(d) an extended working week (clause 1.21)
(e) on and off site batching of concrete.
7. Contemporaneous notes and diary entries by all respondent personnel present at the meetings with the applicant on 3rd October, 2002 and 30th October, 2002.
Approved: Edmund Honohan
