Advanced Totes Limited -v- Bord na gCon, [2006] IESC 17 (2006)

Docket Number:62/05
Party Name:Advanced Totes Limited, Bord na gCon
Judge:McGuinness J.
 
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THE SUPREME COURT

No. 062/2005

McGuinness J.

Hardiman J.

McCracken J.

Kearns J.

Macken J.

BETWEEN

ADVANCED TOTES LIMITED

APPELLANT/APPLICANT

AND

BORD NA gCON

RESPONDENT

AND

AUTOTOTE WORLDWIDE SERVICES LIMITED

NOTICE PARTY

Judgment of Mrs Justice McGuinness delivered the 23rd day of March 2006

This appeal concerns the public procurement rules of the European Union as applied to a contract for the provision of totalisator services at a number of greyhound racing stadia operated by the respondent. The appellant appeals against the judgment and order of the High Court (Murphy J.) made and delivered on the 20th December 2004.

The appellant, Advanced Totes Limited, is a private limited company registered in the United Kingdom which engages in the business of providing hardware, software, consultancy and other services needed to install and operate a totalisator service. The respondent was established under the Greyhound Industry Act 1958 and is a commercial semi-state body having responsibility for the control, regulation, management and development of the Irish Greyhound Industry. Pursuant to its responsibilities and powers the respondent is licensed to operate totalisator facilities at the various greyhound stadia which it operates within the State. The notice party, Autotote Worldwide Services Limited, is the company to whom the respondent decided to award the contract the subject matter of these proceedings in or about September 2003.

FACTUAL BACKGROUND

The factual background to the proceedings is set out in detail in the judgment of the learned trial judge. It may be summarised as follows. Owing to the status of the respondent as a public body and the value of the contract in question, the respondent, under E.U. Council Directive 18th June 1992 relating to the co-ordination of the award of public service contracts ("The Services Directive"), was obliged to advertise the contract in the Official Journal of the European Union. This advertisement was published in the Official Journal on 15th May 2003. Intending tenderers for the provision of this totalisator contract were furnished with Invitation to Tender documentation. The appellant in fact had received this document by e-mail initially on 11th April 2003. Clause 4 of the Invitation to Tender document set out the respondent's requirements. Since the nature of these requirements is a major issue in this appeal they will be referred to in detail later in this judgment. Four parties tendered for the contract:

(I) The appellant, Advanced Totes Limited;

(II) Amtote;

(III) Autotote (the Notice Party);

(IV) Data Tote Limited.

The respondent board established an Award Committee to adjudicate upon the tenders. The members of that committee were Mr Michael Foley, Mr Martin Doolan and Ms Patricia Griffin. Prior to the awarding of the main contract, at a date before 29th July 2003, the respondent had previously awarded the totalisator contract for the Galway Greyhound Racing Stadium to the appellant on a "purchase" basis. Between 29th July 2003 and 5th August 2003 each of the four tenderers made a presentation to the Award Committee of the respondent in respect of the tender which it had submitted. A meeting of the Award Committee was held on 14th August 2003 to evaluate the four tenders received. Somewhat differing accounts of the following events were given in both affidavit and oral evidence before the High Court. It appears to be common case that the members of the Award Committee were in agreement that the tender by Amtote was the most technically suitable but that it could not be accepted because of its high price. It appears from the evidence both of Mr Paul Simpson, Managing Director of the appellant, and of Mr Martin Doolan of the Award Committee that in or about 2nd September 2003 Mr Doolan telephoned Mr Simpson and informed him "off the record" that a decision had been made to recommend the award of the contract to the appellant and that this decision was to be conveyed to Mr Pascal Taggart, chairman of the respondent. Mr Michael Foley, however, particularly in his oral evidence in the court below, denied that any such decision in favour of the appellant's tender had been made. On 4th September 2003 Mr James Gilmore, managing director of Autotote, wrote a letter to Mr Foley informing him, inter alia, that Autotote was willing to review the pricing element of its tender with a view to increasing its competitiveness. A number of days later, Mr Foley, who had been away, was made aware of this letter. He then telephoned Mr Gilmore. The appellant in its proceedings alleged that in the course of this telephone call Mr Gilmore was given information about the pricing element of the appellant's tender; this was forcefully denied by Mr Foley.

The Award Committee apparently sought legal advice as to whether it could negotiate on price with an individual tenderer and was advised that it would be necessary to seek a re-tender on price from all four tenderers. By letter dated 11th September 2003 the respondent accordingly sought such re-tenders, which were provided by all four tenderers. The Award Committee evaluated the re-tenders at a meeting on 25th September 2003 and at a further meeting on 26th September 2003 the Committee decided to award the contract to the notice party, Autotote. This was notified to the appellant. The appellant made enquiries as to the reason why the contract was not awarded to Advanced Totes Limited. By letter dated 7th October 2003 Mr Foley on behalf of the respondent informed Mr Simpson of the appellant company that the respondent had regard to a number of considerations in rejecting the appellant's tender, as follows:"(1) The fact that your system has not been fully tested for ITSP compliancy.(2) That your proposal involved the Board hosting and managing the IT infrastructure.

(3) That you did not have operating self-serving terminals.

(4) The fact that you had no loyalty card system in operation.

(5) The fact that your hand-helds did not have a GPRS Strategy." It was also stressed that the system put forward by the appellant would "create additional management resource issues for the Board".Following various further communications between the appellant and the respondent, the appellant issued the present proceedings pursuant to the European Communities (Review Procedures for the Award of Public Supply, Public Works and Public Services Contracts) (No. 2) Regulations 1994 S.I. 309/1994 and the European Communities (Award of Public Services Contracts) Regulations 1998, S.I. 378/1998.

THE PROCEEDINGS

By Notice of Motion dated the 22nd December 2003 and returnable for 26th January 2004 the applicant sought the following reliefs:

1. A declaration that, in making the decision to award the contract the subject matter of the proceedings herein to Autotote Worldwide Services Limited ("Autotote"), the respondent failed to comply with the requirements of European Union Law on Public Procurement and in particular Council Directive of 18th June 1992 relating to the co-ordination of procedures for the award of Public Service contracts (92/50EEC) as amended;

2. A declaration that in making the decision to award the contract the subject matter of the proceedings herein to Autotote the respondent failed to comply with the requirements of Irish Law on public procurement and in particular the European Communities (Review Procedures for the Award of Public Supply, Public Works and Public Services Contracts) (No. 2) Regulations 1994 as amended and the European Communities (Award of Public Service Contracts) Regulations 1998 as amended;

3. A declaration that the contract the subject matter of the proceedings herein is void;

4. An order of certiorari quashing the decision of the board to award the contract which is the subject matter of the proceedings herein to Autotote.

The applicant also sought damages but this issue does not appear to have been pursued to any great extent in the court below. The details of the contract in question and the grounds upon which the applicant relied in seeking relief were set out extensively in the grounding statement of the applicant also dated 22nd December 2003. A Statement of Opposition was filed by the respondent on 4th February 2004.

The matter was at hearing before the High Court for some six days between 19th and 27th October 2004. In addition to copious affidavit evidence a number of witnesses were cross-examined at length on their affidavits.

The evidence before the court is set out in some detail in the judgment of the High Court. A majority of the evidence dealt firstly with Mr Doolan's telephone call to Mr Simpson in early September 2003 informing him that the committee was to recommend that the applicant should be awarded the contract and secondly with the issue as to whether Mr Foley in his telephone conversation with Mr Gilmore had revealed sensitive information to him regarding the price of the appellant's tender.

The evidence also raised issues concerning the formulation of the respondent's Invitation to Tender document and in particular whether the respondent failed to list the criteria for the awarding of the contract in descending order of importance in an appropriate way. The applicant claimed that an important and indeed crucial factor in the awarding of the contract to Autotote was that Autotote in its tender offered to host the central communications hub of the computerised tote system, whereas the applicant's tender envisaged this hub being hosted by the respondent itself. The applicant alleged that this criterion appeared to have been of central importance but was not specifically listed in the award criteria. The respondent's evidence was that the general phraseology of the tender documentation was sufficiently clear for the position to have been understood by all tenderers.

THE DECISION OF THE HIGH COURT

In his judgment the learned trial judge, having summarised the evidence, set out the...

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