Neutral Citation [2016] IEHC 493
THE HIGH COURT
JUDICIAL REVIEW
[2015 No. 160 JR]
(2015 No. 44 COM)
IN THE MATTER OF SECTION 50 OF THE PLANNING AND DEVELOPMENT ACT, 2000, AS AMENDED
BETWEEN
FORUM CONNEMARA LIMITED
APPLICANT
AND
GALWAY COUNTY LOCAL COMMUNITY DEVELOPMENT COMMITTEE
RESPONDENT
JUDGMENT of Mr. Justice Hedigan delivered on the 10th of August 2016.
1. INTRODUCTION
1.1. In these proceedings, the applicant seeks judicial review of a determination of Galway County Local Community Development Committee under Order 84A of the Rules of the Superior Courts, 2010, relating to the review of the award of a public contract. The applicant herein seeks the following reliefs:-
1 “1. A Declaration that the decision made by the respondent, as set out in a letter dated 2nd March, 2015, from the respondent to the applicant, is invalid and ineffective.
2 Such alternative penalties as the Court may deem appropriate, including under Article 13 of S.I. No 130 of 2010 and including appropriate civil financial penalties and/or the termination or shortening of the duration of the contract.
3 An order of certiorari quashing the purported decision of the respondent to refuse to award the contract for the appointment of programme implementers to the Social Inclusion and Community Activation Programme (“SICAP”) for the County of Galway, as set out in a letter by the respondent to the applicant dated 2nd March, 2015.
4 An Order pending a full inter partes hearing of the matter prohibiting the respondent from implementing, in any manner howsoever, the purported decision made on 2nd March, 2015 and evidenced in a letter dated 2nd March, 2015, which proposes to grant Galway Rural Development Company Limited the exclusive right to implement all Social Inclusion and Community Activation Programmes for the entire County of Galway, including Connemara pending further order of this Honourable Court.
5 Such further interlocutory Orders as may be necessary to correct the infringement that has occurred of the applicant’s rights and or to prevent further damage to the applicant’s interests including measures to suspend or ensure the suspension of the procedure for the award of the public contract the subject matter of these proceedings or the implementation of the decisions under challenge herein.
6 An Order treating the service of the Notice of Motion dated 12th May, 2015, (following on the grant of leave by Noonan J.), as an originating Notice of Motion in these proceedings for the purposes of Order 84A Rule 3 of the Rules of the Superior Courts, 1986, and dispensing with any requirement to issue a further Notice of Motion.
2. THE PARTIES
2.1. The applicant is a rural development partnership of voluntary, community and statutory bodies based in Connemara. Its main objective is to put in place strategies and programmes to tackle the problem of rural decline and peripherality in the Connemara area. Forum Connemara was established in 1990 by ‘Connemara West’ to administer the EU Poverty 3 Programme and various other social programmes over the years. In 2006, the former Minister for Community, Rural and Gaeltacht Affairs decided that Connemara should have an organisation of its own to continue this work and deemed the applicant suitable and compliant for this purpose.
2.2. The Respondent Committee is a statutory body established pursuant to the provisions of the Local Government Act and, in particular, pursuant to Section 36 of the Local Government Act, 2014, which provided for the establishment of Local Community Development Committees (“LCDC’s”). The establishment of these Committees were further provided for in Statutory Instrument No. 234/2014, which came into force only on 1st June, 2014. The respondent was also, at all material times, the contracting authority for the purposes of the award of the public contract under challenge in these proceedings.
3. BACKGROUND
FACTUAL BACKGROUND
3.1. Galway County LCDC was established in June, 2014. Under the Local Government Act 2001, it is charged with, inter alia, co-ordinating, managing and overseeing the implementation of local and community development programmes that have been approved either by the relevant local authority or by agreement between the LCDC and a relevant public authority, such as a Government Department or State Agency.
3.2. One such programme is the Social Inclusion and Community Activation Programme (“SICAP”) which is aimed at tackling poverty and social exclusion in disadvantaged communities. That programme is managed and administered by local community development committees which provide direct funding to various programme implementers or service providers.
3.3. At a meeting held on 30th September, 2014, Galway County LCDC made a decision that there should be only one service provider or programme implementer for SICAP for the entire County of Galway. Previously, the funding for SICAP had been implemented by two separate programme implementers and each was in control of one of two areas or lots. Forum Connemara and Galway Rural Development Company Limited were the relevant service providers.
3.4. The award of the contract for programme implementer of SICAP was a two-stage procurement process. The result of the stage one phase led to five entities, including Forum Connemara, being deemed capable of delivering SICAP in County Galway and each of these were invited to participate in stage two of the process.
3.5. As mentioned above, on 30th September, 2014, Galway LCDC decided that there should be one programme implementer for SICAP for the whole county of Galway. Subsequently, an invitation to tender for the provision of programme implementation services for SICAP was issued to the five companies selected under the stage one procedure. The tender documentation was issued on 20th October, 2014. The same clearly outlined that the contracting authority, Galway County LCDC, required the delivery of services in respect of one single lot- Lot 27- the said area being in respect of the whole of the county of Galway as identified on the map contained in the tender documentation.
3.6. The budget for the SICAP for County Galway which would come under the control of the successful candidate was to be 1.2 million Euro or thereabouts for the period spanning April to December, 2015.
3.7. The applicant submitted a tender referable to what is described in its tender documents as Galway County (Lot 27) comprising an area of 5,796 kms (squared) with a population of 175,124 as of 2011. Sometime later, Galway Rural Development Company Limited was awarded the contract and by letter dated 2nd March, 2015, Forum Connemara was advised that it had been unsuccessful in its tender.
3.8. It is now accepted, although initially disputed, by Forum Connemara that the decisions of 30th September, 2014 and 2nd March, 2015, concern a contract which falls within the scope of the Public Works Contracts, Public Supply Contracts and Public Services Contracts Directive (Directive 2004/18/EC) and the Review Procedures Directive (Directive 2007/66/EC as amended) as implemented by S.I. 329/2006 European Communities (Award of Public Authorities’ Contracts) Regulations 2006 and S.I. 130/2010 European Communities (Public Authorities’ Contract) (Review Procedures) Regulations 2010.
PROCEDURAL BACKGROUND
3.9. On 23rd March, 2015, the applicant was given leave to apply for judicial review, seeking an order of certiorari quashing the decision of Galway County LCDC made on 30th September, 2014, that there should be one service provider or programme implementer for SICAP for the entire Galway County area. Forum Connemara was also given leave to seek to have the decision of 2nd March, 2015, to award the contract to Galway Rural Development Company Limited, quashed. An order was also made staying the decision of 2nd March, 2015, until the determination of the proceedings. On 12th May, 2015, the proceedings were transferred to the Commercial Court by Order of McGovern J.
3.10. In response, Galway County LCDC brought an application to strike out the proceedings on the basis that the claim was one to which the provisions of O. 84A applied and, as such were, at that time, improperly constituted under O. 84. It also sought an order striking out the applicant’s challenge to the resolution of 30th September, 2014, to the effect that the implementation of SICAP should proceed by way of one lot, on the grounds of the delay on the part of Forum Connemara in seeking to challenge that decision.
3.11. In the High Court, Barrett J. came to the conclusion that the applicant was well out of time for issuing the proceedings which it had commenced on 23rd March, 2015, when it had applied before the High Court (Noonan J.) for leave to apply for certiorari. That application was made some twenty two weeks after the decision of 30th September, 2014, and twenty weeks after Galway County LCDC issued its invitation to tender on Monday 20th October, 2014.
3.12. Barrett J. did not feel it necessary to determine when the 30 day time limit for bringing a challenge under O. 84A began to run. He expressed himself satisfied from the affidavits before him that Forum Connemara had established ‘good reasons’ within the meaning of O. 84A, r. 4 (2), such that he could extend the time to permit the challenge to proceed. The circumstances of the case, which Barrett J. considered to have amounted to ‘good reasons’, were summarised by him as follows:-
i) Not being a commercial entity with a highly professional infrastructure, Forum Connemara might not have recognised the need for it to conform to the 30 day time limit for procurement related challenges and had acted reasonably in not issuing proceedings, by reason of the fear of incurring substantial legal costs.
ii) That the abuses alleged to have taken place at the meeting of 30th September, 2014, went to the heart of good government and there was a public interest in ensuring that committees representing communities were not commandeered by councils into making decisions which were in conformity with what the council itself believed to be in the best interests of the community.
iii) Forum Connemara had received an assurance on 10th September, 2014, from a senior official at the Department of the Environment, Community, and Local Government that SICAP funds would be dispersed in a manner different to that settled upon at the meeting of 30th September, 2014, such that might give grounds to Forum Connemara to raise an argument as to legitimate expectation.
iv)The decision of 30th September, 2014, had generated a significant public concern such that several hundred people had attended a meeting at Maam Cross to voice their disquiet about the decision.
v) The contract to be awarded based upon the decision of 30th September, 2014, was not to be equated to the normal type of procurement contract such as one to build a roadway or a bridge. It was a contract which determined who would get to distribute funds to vulnerable members of society, some of whom would be disappointed by how the money would be spent.
3.13. The trial judge concluded that the above circumstances were unlikely to present themselves in most other procurement cases and thus, when all five reasons were taken together, they amounted to ‘good reasons’ within the meaning of O. 84 A, r. 4(2) such that time ought to be extended to permit Forum Connemara’s challenge proceed. Barrett J. permitted Forum Connemara to enter a reconstituted statement of grounds under O. 84A, as opposed to O. 84.
3.14. Galway County LCDC appealed the delay aspect of Barrett J’s decision. Irvine J in the Court of Appeal held that Barrett J. had erred in principle and in law when he concluded that there were good reasons within the meaning of O.84A to extend the time to permit Forum Connemara challenge the decision of 30th September, 2014. Moreover, Irvine J. went on to stress that there were factors relevant to the case which sounded strongly against the granting of such relief. For example, Irvine J. stated, at para. 61, that:-
“not only did Forum Connemara not institute its proceedings within the prescribed time limit but it approbated the decision which it maintains was invalid and did so for its own commercial benefit. It was only when it was notified that the contract had been awarded to a third party that it decided to challenge the earlier decision made on 30th September, 2014.”
Consequently, the Court of Appeal judge concluded, at para. 62, that:-
“to extend time under O. 84A in the circumstances of the present case would result in a gross impairment of the effectiveness of the implementation of the Community Directives on the award of public contracts.”
4. MATTERS PRESENTLY BEFORE THE COURT
4.1. In light of the Court of Appeal’s decision, I am solely concerned with the decision of Galway County LCDC to award the contract to Galway Rural Development Company Limited on 2nd March, 2015. I cannot, as a matter of law, concern myself with the original decision of 30th September 2014. It should be noted, however, that the re-constituted statement of grounds was served under O84A prior to the Court of Appeal decision of Irvine J. Thus, there are several reliefs sought/grounds raised in the Re-Constituted Statement of Grounds that are not relevant to these present proceedings by reason of the fact that they are solely related to the decision made by LCDC on 30th September, 2014. As the Court of Appeal decision has definitively struck out any action on this decision on grounds of delay, these present proceedings will be focused solely on the decision made on 2nd March, 2015.
5. APPLICANTS SUBMISSIONS
PRELIMINARY OBJECTION
5.1. The applicant in these proceedings maintains that Galway County LCDC have not, at any stage, demonstrated that they in fact have taken a decision and/or given instructions to defend these proceedings. It is asserted that Galway County Council are the ones giving instructions through their legal representatives and that no decision has been taken by Galway County LCDC to defend the proceedings. Thus, Mr. Ó Tuathail S.C. asserts that said legal representatives do not have locus standi before this court, as they have no instructions from Galway County LCDC.
5.2. Whilst conceding that this is a “gatekeeper issue” which ought to be dealt with at the very outset of proceedings, counsel for the applicant argues that this issue has been in existence since the outset of the proceedings.
6. REASONS
6.1. The core argument put forward by the applicant in the application is that the respondent failed to give adequate and intelligible reasons for its decisions dated 2nd March, 2015. The applicant emphasized the importance of ensuring that decision-makers are obliged to disclose the reasons for their decisions. It relied upon Mallack v. The Minister for Justice, Equality and Law Reform [2012] IESC 59. In that case, Fennelly J. notes at para 2:-
“This question is, of its nature, closely related to other features of the rules of natural justice compendiously covered by the broad principle of audi alteram partem, which may include the giving of prior notice of impending decisions, of the matters which the decision-maker will take into account and, in appropriate cases, the disclosure of information and even, in some cases, the holding of a hearing”.
6.2. Mallack also cites with approval the judgement of Phillips L.J. in R. v. Secretary of State ex parte Fayed [1998] 1 WLR 763., whereby he notes, at p. 787, that “the courts have been increasingly ready to find that such a duty [to give reasons] exists”.
6.3. The applicant argues that the reasons given were too vague and lacking in specifics. For instance, the applicant argues that the 2nd March letter merely provided an overall summary of the reasons for the unsuccessful tenderer, as opposed to specific reasons as to why they only scored “acceptable” in various aspects of the application. It also points to the fact that some categories of the application were ignored altogether in the letter of 2nd March, 2015.
7. LACK OF PROPORTIONALITY
7.1. The applicant argues that the respondent made no effort to build into its decision any element of proportionality which might have included: a) a lengthy transitional period, b) the option for one provider to subcontract programmes to the other at their discretion and without limitation, c) a review at an early stage and d) a probationary period for the successful candidate which would make it easier to reverse the decision in the event that it proved to be wrong and or unwieldy.
7.2. The applicant argues that no adequate opportunity was given to it to improve on any of the criteria outlined, notwithstanding the fact that they were told that they should have given more detail in the 2nd March letter. The respondent refused to offer the applicant any debriefing meeting or feedback, or any sort of oral meeting, clouding their 2nd March decision in further ambiguity and secrecy, according to the applicant.
7.3. The applicant also asserts that they were not given adequate warning as to the level of detail and expectation on the criteria outlined. In terms of the reasons contained in the 2nd March letter, the applicant claims that they were not given any opportunity to “mend its hand”, owing to the fact that, when further information was provided by the applicants on 16th March, 2015, the decision had already been made. Finally, it was argued that the respondent failed to have any regard to the applicant’s detailed letter of 16th March, 2015 which, it was argued, clearly addressed all of the concerns of the respondent.
8 IRRATIONALITY
8.1. Further, the applicant argues that the lack of reasons furnished in the March 2nd letter render this decision of Galway LCDC as one of irrationality. Whilst the irrationality ground put forward by the applicant is predominantly concerned with the already-adjudicated-on 30th September, 2014 decision, it is asserted that the 2nd March decision is also one which “flies in the face of reason and common sense”.
8.2. Relying on Finlay J’s judgement in SIAC Construction Limited v. Mayo County Council, [2002] 3 IR 148, the applicant argues that the test for irrationality is one of “manifest error”. However, in SIAC, Fennelly J. made it very clear, at p. 176, that:
“that the word ‘manifest’ should not be equated with any exaggerated description of obviousness. 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 that an error has clearly been made”.
8.3. This “clear error” threshold was subsequently approved in Fresenius Medical Care (Ireland) Limited v. Health Service Executive [2013] IEHC 414., and by O’ Neill J. in Clare Civil Engineering Limited v. County Council of Mayo [2004] IEHC 135., where he stated at para. 41 that “the applicant carries the onus and must satisfy this court that the decision of which he complains was made in clear error”.
8.4. The applicant also noted that, in SIAC, the engineers report was apparently available to all of the necessary parties. According to the applicant, this can be contrasted with the fact that Forum Connemara did not receive the evaluation report and, as a result, did not know of the reasons why they weren’t the successful tenderer.
8.5. In terms of the “clear error” allegedly inherent in the 2nd March decision, it is argued that there were two main “clear errors” made by LCDC. The first error, according to the applicant, was the misguided belief of the Chief Officer that the only outcome from the 24th September, 2014 meeting that the Minister would accept was that there be only one lot for the entire County of Galway. Despite conceding that this decision cannot be considered by this Court, it is asserted that this apparent “clear error” was relevant to the overall thinking of the LCDC and thus relevant to the decision of 2nd March, 2015.
8.6. Secondly, the applicant argues that the geographical, economic, social, and cultural diversity of Galway County was not taken into account by LCDC when awarding the contract. The applicant argues that the County of Galway is essentially divided up into three distinct areas- East and North Galway, Galway City, and Connemara- the largest Gaeltacht in Ireland. It also references the various islands off the coast of Galway. Whilst conceding that this issue is essentially related to the 24th September, 2014 decision, the applicant argues that this decision was a “clear error”, and had the cumulative effect of rendering the tender process as a whole irrational.
9. MISCELLANEOUS OTHER MATTERS.
9.1. It is also argued by the applicant that the following regulations and directives were breached on foot of the 2nd March decision:-
• EUROPEAN COMMUNTIES (AWARD OF PUBLIC AUTHORITIES’ CONTRACTS) REGULATIONS 2006 (S.I. NO. 329 OF 2006).
i) Regulation 17 (1): This Regulation requires all contracting authorities to act in a fair and transparent manner in the awarding of contracts.
ii) Regulation 28: This regulation requires all contracting authorities to award a public contract by means of an open procedure or a restricted procedure. The applicant argues that the respondent’s selection of procedures was unclear and/or inappropriate, as The Invitation to Tender says “a procedure analogous to the restricted procedure set out in that directive will be used for the award of the contract”.
iii) Regulation 49: A failure to inform the applicant appropriately and formally concerning the decision of 30th September, 2014, which it is now apparent, was a “step” or interim decision in a Public Procurement Process.
iv) Regulation 51- This regulation obliges a contracting authority to prepare a written report for every contract or framework agreement that it enters into. This report must contain a number of particulars as outlined in the regulation.
v) Part 8- Chapter 1, entitled - ‘How the procedure is to be conducted’. The applicant pleads that the manner in which the decision was made deviated very significantly from the provisions set out in this part, including disproportionate decision-making, discriminatory/biased approach and failing to ensure that the solution arrived at, namely “one lot”, was consistent with genuine competition.
vi) Article 41- The applicants argue that the respondents have failed to give adequate and transparent reasons for its 2nd March, 2015, decision, as required by this article.
vii) Regulation 66- The complaint arising from this regulation is that the respondents failed to properly and rationally assess and reality test the proposal to award the entire county of Galway to one economic operator, and thereafter failing to properly and rationally apply the criteria to an area that was so distinct.
• EUROPEAN COMMUNITIES (PUBLIC AUTHORITITIES’ CONTRACTS) (REVIEW PROCEDURES) REGULATIONS 2010 (S.I. NO. 130 OF 2010);
• EUROPEAN COMMUNITIES (PUBLIC AUTHORITITIES’ CONTRACTS) (REVIEW PROCEDURES) (AMENDMENTS) REGULATIONS 2015.
• THE PUBLIC WORKS, PUBLIC SUPPLY AND PULBIC SERVICES CONTRACTS DIRECTIVE (DIRECTIVE 2004/18/EC):-
i) Article 2- The applicants argue that this article was breached by the respondent, in failing in its duty to treat operators equally, not to discriminate and to act transparently.
ii) Article 28- This article also refers to the unclear and/or inappropriate procedure selection argument put forward by the applicant.
iii) Article 53- Inappropriate and/or irrational criteria assessment and calibration for the Connemara region.
• THE PUBLIC UTILITIES CONTRACTS DIRECTIVE (DIRECTIVE 2004/17/EC).
• THE REVIEW PROCEDURES DIRECTIVES (DIRECTIVE 89/665/EEC AND DIRECTIVE 92/13/EEC EACH AS AMENDED BY DIRECTIVE 2007/66/EC).
i) Article 2 (a): The applicants argue that the respondents have failed to adapt a standstill period, as outlined in this Article. It is argued that this standstill period should have genuinely allowed for the fulfilment of the objectives of the directive, namely to give sufficient time to the applicant to carry out an effective review of the contract award decision.
ii) Inappropriately adapting the absolute minimum standstill period and no debriefing opportunities despite the complexity, notoriety, and mixed signalling surrounding the decision.
10. RESPONDENTS SUBMISSIONS
PRELIMINARY OBJECTIONS
10.1. Before responding directly to the applicant’s claims, the respondent raised a preliminary objection on the basis that additional pleas were impermissibly added to the Reconstituted Statement of Grounds, submitted under Order 84A of the Rules of the Superior Courts. It argues that the order of Barrett J. must be seen as purely procedural, in that it merely authorised the applicants to serve a Reconstituted Statement of Grounds under order 84A of the Rules of the Superior Courts. It did not, however, allow the applicants to add additional reliefs or raise additional grounds in its Reconstituted Statement of Grounds. Such a course of action would only be permitted when specifically permitted by the Order of the Court. As mentioned above, Barrett J’s order was purely procedural in nature and did not provide for the inclusion of further reliefs or the raising of additional grounds. Thus, the respondent asserts that the following paragraphs of the Reconstituted Statement of Grounds should be excluded as impermissible: -
a) Para 3: Such alternative penalties as the Court may deem appropriate including under Article 13 of S.I. No. 130 of 2010 and including appropriate civil financial penalties and/or the termination or shortening of the duration of the contract
b) Para 8: Such further interlocutory Orders as may be necessary to correct the infringement that has occurred of the applicant’s rights, and or to prevent further damage to the applicant’s interests including measures to suspend or ensure the suspension of the procedure for the award of the public contract the subject matter of these proceedings or the implementation of the decisions under challenge herein.
c) Para 9: An Order treating the service of the Notice of Motion dated 12th May, 2015, (following on the Grant of leave by Noonan J.), as an originating Notice of Motion in these proceedings for the purposes of Order 84A Rule 3 of the Rules of the Superior Court, 1986 and dispensing with any requirement to issue a further Notice of Motion.
d) Para 11: Damages (Regulation 14 of S.I. 130 of 2010- Non Exclusion).
e) The respondent also argues that the grounds raised under the heading of “Miscellaneous other matters required by Order 84A” are impermissible for the reasons discussed.
LOCUS STANDI
10.2. The respondent argues that this issue was not pleaded, either in the original statement of grounds or in the application to amend the statement of grounds. She further asserts that an application was never brought by the applicant to amend their statement of grounds, despite the fact that they had knowledge of this ground from almost the outset of the proceedings. Moreover, the respondent asserts that, despite the fact that this issue was not pleaded, a relatively voluminous amount of documentation appeared before Barrett J. in the High Court from both parties. The respondent points to the fact that written submissions from both parties dealt with the issue of locus standi, as well as affidavits from Catherine McConnell and Josephine Lally and Noel Thomas. Further, Barrett J. heard detailed oral submissions from counsel for both sides on this point.
10.3. In his judgment Barrett J. did not deal with the issue of locus standi. The respondent argues that this omission implies that Barrett J. found that no issue of standing arose in this case. It is further asserted by the respondent that the applicants should have raised an objection at this point, either directly with Barrett J. or by way of a cross-appeal. This, according to the respondent, was the last point at which the issue of standing could have been raised. Locus standi is a preliminary issue and one which ought to be determined prior to the proceeding of a case.
11. FAIR PROCEDURES
11.1. The respondent denies that the stage two tender process in which the applicant participated was a charade, and that the respondent always intended that Galway Rural Development Company Limited would be the successful candidate, as argued by the applicant.
11.2. The Chief Officer of the respondent followed the specified procedures for the Tender invitation and the subsequent assessment and evaluation of the received tenders. The evaluation process was agreed at a meeting of the respondent held on 6th December, 2014, and consisted of two stages. The result of the stage one phase led to five entities, including Forum Connemara, being deemed capable of delivering SICAP in County Galway and each of these were invited to participate in stage two of the process.
11.3. The respondent argues that the Evaluation Team were independent and not members of the respondent. Members of this team were selected based on in-house expertise in financial matters, community and economic development matters and knowledge of the nature and purpose of such Social Inclusion and Community Activation measures.
11.4. The results of the Evaluation Team’s assessment were presented to the Evaluation Sub-Committee on 15th January, 2015. The Evaluation Sub-Committee was comprised of three members of the respondent, namely Mr. Conor O’ Dowd, Councillor Noel Thomas and Mr. Martin Ward. This sub-committee was selected based on Departmental guidance- the Chief Officer wrote to all LCDC members seeking nominations. On foot of expressions of interest in participating on the committee, the LCDC agreed the 3 nominees for the Evaluation Sub-Committee at a meeting held on 11th December, 2014. Pobal were then notified as to the results of the evaluation process. They carried out an independent evaluation of the tender evaluation procedure in order to ensure consistency of approach and evaluation, both in the Galway County lot and across all lots in the Country. Pobal, after carrying out this review, instructed the Chief Officer to proceed with the relevant communication to the successful and unsuccessful tenderers. Thus, it is argued by the respondent that all of the above outlined steps adhered to the relevant procedures and there was no breach of fair procedures.
12. LACK OF PROPORTIONALITY
12.1. The respondent argues that the respondent does not have the discretion to change the parameters of the SICAP programme, as suggested by the applicant. SICAP is a national programme and the respondent has to comply with the requirements of the invitation to tender of 20th October, 2014.
13. REASONS
13.1. The respondent submits that the reasons set out in the letter of 2nd March, 2015, clearly adhere to the public procurement standards as set out in the relevant directives and case law in this area. Reference is made to the judgement of Peart J. in Baxter Healthcare Limited v. Health Service Executive and Beacon Medical Group [2013] IEHC 413, whereby he draws a distinction between the “reasons” threshold for Annex IIA and Annex IIB contracts. At para 42., Peart J notes that Annex IIA contracts:-
“are bound to undertake the tender in strict compliance with the applicable Directives which, in the view of the legislature at least, ensure in respect of such contracts that the EU law principles of transparency, equal treatment, non-discrimination and general fairness are complied with”.
13.2. Annex IIB contracts are covered by Article 41 (2) of EU Directive 2004/18/EC, which provides that:-
“2. On request from the party concerned, the contracting authority shall as quickly as possible inform:
i) any unsuccessful candidate of the reasons for the rejection of his application
ii) any unsuccessful tenderer of the reasons for the rejection of his tender, including, for the cases referred to in Article 23, paragraphs 4 and 5, the reasons for its decision of non-equivalence or its decisions that the works, supplies or services do not meet the performance or functional requirements.
iii) any tenderer who has made an admissible tender of the characteristics and relative advantages of the tender selected as well as the name of the successful tenderer or the parties to the framework agreement.
iv) The time taken may in no circumstances exceed 15 days from receipt of the written request”.
13.3. In response to the applicant’s assertion that the tender in these proceedings may have characteristics related to both Annex IIA and Annex 11B contracts, the respondent points to the fact that the opening page of the Invitation to Tender specifically states that the tender is an Annex IIB contract. The applicant does not point to any evidence anywhere suggesting that the contract in question may be “mixed”.
13.4. There may be merit to the legal argument that the higher threshold applies to both types of contract. Article 2A of Directive 2007/66/EC provides that the communication of the award decision to each tenderer and candidate concerned shall be accompanied by:-
“A summary of the relevant reasons as set out in Article 41 (2) of Directive 2004/18/EC, subject to the provisions of Article 41 (3) of that Directive”.
13.5. The respondent asserts that Article 2A could be interpreted as meaning that Article 41 (2) applies to both types of contract. Nevertheless, this point is largely irrelevant in terms of the present case as the letter of 2nd March, 2015, easily satisfies the higher threshold outlined in Article 41 (2).
13.6. As set out above, the applicant argues that they weren’t given the opportunity to “mend its hand”, and that they were denied an oral hearing. The respondent asserts that, in normal competitive tendering, no such mechanisms are in place. Public Procurement is a self contained statutory code, emanating from the European Union. Thus, the courts have no discretion to decide how these Directives and Regulations should be implemented from an Irish perspective. The remit of the Courts in this regard is to identify what is required by the Directive in question and implement it accordingly. As Article 41 (2) of Directive 2004/EC/18 makes no provision for an oral hearing, or indeed for the opportunity to make improvements to the tender application subsequent to the 2nd March letter, the respondent asserts that the applicant’s argument in this regard simply does not stand up to scrutiny.
13.7. In terms of the applicant’s responding letter of 16th March, 2015, the respondent was advised not to hold a de-briefing meeting with the applicant, as requested in the letter, as such behaviour is contrary to Procurement Rules. Their procurement adviser, Achilles Procurement Services Ltd., advised that such meetings should not take place with unsuccessful tenderers before the contract has been executed with the tenderer. Moreover, the respondent argues that there is nothing in the Directives in question requiring the respondent to hold a debriefing meeting.
13.8. The respondent refutes the claim that the applicant wasn’t given sufficient warning as to the level of detail required in the application. Forum Connemara, along with all the other potential tenderers, were provided with the detailed invitation to tender document, which clearly set out in section 3 of the document exactly what information was required and what criteria was necessary for evaluation.
13.9. In response to the applicant’s claim that some categories are completely ignored in the 2nd March letter, the Court is directed to Article 41 (2), whereby it provides that anyone who has submitted an admissible tender is entitled to the characteristics and relative advantages of the selected tenderer. The letter of 2nd March, 2015, provides Forum Connemara with “a summary of the reasons for your tender being unsuccessful by comparison with the characteristics and relative advantages of the successful tenderer”. This is why, according to the respondent, the only categories that were ignored were those in which both Galway Rural Development Company Limited and Galway County LCDC had received the same score, as, according to the Directive, the unsuccessful tenderer is merely entitled to reasons in areas in which they fared better than the successful tenderer.
13.10. The respondent argues that the letter of 2nd March, 2015, meets the very high “reasons” threshold set out in RPS Consulting Engineers Limited v. Kildare County Council [2016] IEHC 13. In RPS, Humphreys J. was critical of the “uniform and generic nature of the three notification letters” (para. 49), going on to say that “While Mr. McCullough strongly submitted that extremely lengthy and detailed consideration was given to the formulation of these “reasons”, there is no evidence to that effect” (para. 91).
13.11. The respondent argues that these “elusively vague and slippery” (para. 91 of RPS) reasons given in RPS can be contrasted with the individualised, comprehensive reasons given by Galway County LCDC to Forum Connemara. For example, under Criterion 1B- Action Plan for 2015 (9 month plan), the following reasons were given:-
“The Evaluation Sub-Committee concluded that your proposal, while good overall, would have benefited from a more comprehensive description of how each action would be delivered with a rationale for their inclusion. For example, your proposal identified delivery locations without any reference to why those locations were selected…..In contrast, the successful tender provided an equally good proposal but with Comprehensive information regarding each of the actions and the rationale for inclusion. For example, the successful linked action delivery to the specified 10 very disadvantaged areas and 73 disadvantaged areas as outlined in their Area Profile”.
13.12. The respondent submits that this reason, (as well as all of the other reasons outlined in the letter) satisfies both the general principles underpinning EU Public Procurement Directives, as well as the higher “reasons” threshold set out in Article 41 (2). The respondent also argues that it adheres to the “high-threshold test” set out in RPS. In this case, emphasis was placed on the “relative advantages” segment of Article 41 (2). Even if it was conceded that RPS may be interpreted as establishing that unsuccessful tenderers are entitled to a follow-up letter, the respondent argues that this right was exercised in the form of the 16th March letter. Rather than waiting for a response, however, the applicant “jumped the gun” and issued legal proceedings, thus effectively waiving any such right.
13.13. The respondent also refutes the applicant’s claim that the invitation to tender did not take it into account the geographical, social and cultural uniqueness of County Galway. In this regard certain segments of the invitation to tender were opened to the court in which the geographical and social situation of Galway is expressly mentioned.
13.14. Finally, the respondent asserts that the 15 day requirement set out in Article 41 2 (iv) does not apply in this present case as the 2nd March letter contained both the notification of the unsuccessful tender, as well as the reasons for such.
14. DECISION
14.1. The issues that arise in this case are as follows:
a) Do the respondent’s legal representatives have locus standi before this Court? Was this preliminary issue sufficiently dealt with as a “gatekeeper issue” at an earlier stage of these proceedings?
The remaining issues in this case are concerned with the 2nd March, 2015 decision of Galway County LCDC not to award the SICAP contract to the applicant in these proceedings, Forum Connemara, namely:
b) Were the reasons given by Galway County LCDC to Forum Connemara on 2nd March, 2015, adequate and intelligible?
c) Was the decision proportionate, rational and in accordance with fair procedures as set out in the various EU Public Procurement Directives?
14.2. THE NATURE AND SCOPE OF JUDICIAL REVIEW
Judicial Review is not available as a remedy to correct errors or to review decisions so as to render the High Court a Court of Appeal from the decisions complained of. See State (Abenglen Properties) v. Dublin Corporation [1984] I.R. 381. The system of judicial review is radically different from the system of appeals. When hearing an appeal, the Court is concerned with the merits of the decision under appeal. When subjecting some administrative act or order to judicial review, the Court is concerned with its legality. On an appeal, the question is “right or wrong?” On review, the question is “lawful or unlawful?” See Dunne v. The Minister for Fisheries and Forestry [1984] 1 I.R. 230, at p. 237, Costello J. The nature of judicial review of expert bodies was addressed in Henry Denny & Sons (Ireland) Ltd. v. The Minister for Social Welfare [1998] I I.R. 34, where Hamilton C.J. stated at p. 37 that:
“It would be desirable to take this opportunity of expressing the view that the courts should be slow to interfere with the decisions of expert administrative tribunals. Where conclusions are based upon an identifiable error of law or an unsustainable finding of fact by a tribunal such conclusions must be corrected. Otherwise it should be recognised that tribunals which have been given statutory tasks to perform and exercise their functions, as is now usually the case, with a high degree of expertise and provide coherent and balanced judgments on the evidence and arguments heard by them it should not be necessary for the courts to review their decisions by way of appeal or judicial review.”
There is, moreover, a presumption that the decisions of a body such as Galway County Local Community Development Centre are valid until the contrary is shown. The court must assume, in the absence of any evidence to the contrary, that statutory bodies, such as the respondent herein, exercise their powers and discharge their functions in a lawful and proper manner. See Lancefort Ltd. v. An Bord Pleanála [1998] IEHC 199. The burden of proof of establishing any error of law or fundamental question of fact leading to an excess of jurisdiction, or of demonstrating such unreasonableness as flies in the face of fundamental reason and commonsense, rests on the applicant in proceedings such as these. Once there is any reasonable basis upon which the statutory body can make a decision in favour of or against the awarding of a public contract, or can attach a condition thereto, the Court has no jurisdiction to interfere. See Weston v. An Bord Pleanála & Anor [2010] IEHC 255, Charleton J. An applicant can only challenge the statutory body’s decision on irrationality grounds if there was no material before it capable of supporting its view. See Harrington v. An Bord Pleanála [2010] IEHC 428. All that is required of such a body is that there be some material to support its decision and it gives reasons for its decision.
14.3. LOCUS STANDI
This issue has not been pleaded but was argued before Barrett J. in some detail. There were written submissions on the issue from both sides together with affidavits. In addition there were oral submissions from both sides. In his judgment Barrett J. did not advert to the issue at all. He did however deal with the entire case before him. It seems clear therefore that he did not accept the submissions of the applicant in regard to the locus standi of the respondent. It was open to the applicant at this stage to cross appeal on that ground. It did not do so. Locus standi is a preliminary issue and, as I find above, it was in fact dealt with by Barrett J. albeit by implication. This issue was implicitly decided and was not appealed. It is therefore now closed. The second preliminary point raised by the respondent is clearly correct. Additional pleas as outlined in the respondent’s submissions summarised above at 10.1. were clearly added to the reconstituted statement of grounds. No leave had been granted in respect of any of these. Consequently the Court has no jurisdiction to deal with these matters.
14.4. THE ADEQUACY OF THE REASONS
The obligation to give reasons under regulation 49(3) of S.I. 329/2006 does not apply because the contract is clearly an Annex II B type contract. The invitation to tender clearly states this. It is thus subject solely to Article 23 and Article 35(4) which respectively deal with technical specifications and the notification of the decision to award the tender. The requirements of Article 41 of the Directive which is implemented by Regulation 49 of S.I. 130/2010 and which requires the contracting authorities to give reasons for its decision if requested by an unsuccessful tenderer does not apply to contracts that fall under Annex II B.
14.5. It is however accepted that there is a general requirement to give reasons. The March 2nd letter sets out those reasons in what it describes as summary form. It describes the applicant’s proposal as good but not as detailed as the successful tenderer in, for instance, action delivery and delivery locations. It compared less detailed information given by the applicant on linkages with other related organisations with that which was provided by the successful tenderer. It identified similar shortcomings in relation to networking structures with key stakeholders. It described comparative failings in relation to staffing resources including lack of detail as to roles assigned to each of the staff. It also identified a narrower range of complimentary tools than that proposed by the successful tenderer. In addition the applicant’s proposal of how the proposed external body would conduct its review of the evaluation process was less detailed than the successful tenderer. Lastly, the applicant’s proposals in relation to the process of self-evaluation were not sufficiently specified by contrast with the successful bidder. The letter included details of the scores awarded to both the applicant and the successful tenderer. No details were provided of where the applicant’s scores were equal or higher than that of the successful tenderer. These scores covered 12 scoring areas.
14.6. This letter of notification was responded to by the applicant’s letter of 16th March. In this letter the applicant described the above notification letter rather strangely as “a response”. It does not appear to have understood, at least initially, that the notification was, subject to a 14-day standstill period, official notification of the result of the tendering process. However it goes on to a point by point consideration of the reasons given by the respondents under the headings of action plan, staffing resources, performance management, validated programme of learning and networking structures with key stakeholders. It finished with observations on the modus operandi of the assessment in the tender process and asked for details of the evaluation panel.
14.7. It seems by any measure that the reasons provided for the decision outlined in the letter of 2nd March went beyond any general requirement to give reasons. The letter not only described the reasons for the decision but explained in detail why the respondent’s tender was considered a better one. It went further and provided the scores where the successful tenderer did equal or better. It appears clear from the applicant’s letter of 16th March that it had no difficulty understanding the reasons, albeit disagreeing with them. It made its own case in response in some detail and raised some questions. However the applicant did not wait for any response but applied on 23rd March for judicial review of the respondent’s decision communicated on 2nd March. No inability to ascertain the reasons given for the decision may be apprehended either from the applicant’s letter of 16th March or the pleadings in the application for judicial review. In fact quite the reverse appears. The applicant seems to have understood fully the reasons given. The reasons in my judgment were anything but vague and lacking in specifics. I think they more than met any general requirement to give reasons and were in fact specific enough to meet the higher requirements of Regulation 49(3) of S.I. 329/2006 even though, as found above, that standard did not in fact apply.
14.8. The applicant also raised an issue as to the proportionality of the decision made. Proportionality does not arise in this case as argued. The respondent cannot change the parameters of what is a national programme. The playing field was a level one. All the other tenderers had to comply with the invitation to tender.As for the further matters raised in relation to the letter of 2nd March; the applicant claims that it was not given any adequate chance to “mend its hand” in some form of feed back or debriefing. This argument misunderstands the nature of the tender process. There can be no opportunity given to a tenderer to “mend his hand”. Any attempt by the respondent to assist one tenderer to best another would be grossly unfair to the other and would undoubtedly precipitate legal proceedings which could scarcely fail to succeed. It would be an act completely inconsistent with the tendering process. The evidence in this case clearly shows that all parties were informed in full detail of what was required. After that each tenderer was on his own with the contractor forbidden to intervene.
14.9. As to irrationality, even applying a “clear error” test, no real case has been made out of such an error here. Nothing manifestly wrong is apparent. The applicant’s main case in this regard seemed focused on the September, 2014 decision. This of course is now beyond challenge. On the evidence before the Court in relation to the decision of 2nd March, no error can be apprehended by this Court.
The reliefs sought are refused.
