BAM PPP PGGM Infrastructure Cooperatie UA v National Treasury Management Agency

JurisdictionIreland
JudgeMahon J,Peart J
Judgment Date06 November 2015
Neutral Citation[2015] IECA 246
Docket Number[2015 No. 347]
CourtCourt of Appeal (Ireland)
Date06 November 2015
Between
Bam PPP Pggm Infrastructure Cooperatie UA
Applicant/Respondent
and
National Treasury Management Agency and Minister for Education and Skills
Respondents/Appellants

[2015] IECA 246

The President

Peart J.

Mahon J.

[2015 No. 347]

THE COURT OF APPEAL

Public procurement – Discovery – Documentation – Applicant seeking to be appointed preferred tenderer – Whether the trial judge erred in law and in fact

Facts: The applicant/respondent, BAM PPP PGGM Infrastructure Cooperatie UA, challenged the identification by the first respondent/appellant, the National Treasury Management Agency, of a competitor, Eriugena, as the Preferred Tenderer in respect of a major public procurement contract. The competition was for the design, finance, construction and maintenance of a Central Quad and an East Quad for DIT at the former St. Brendan”s Hospital site at Grangegorman, Dublin 7. In March 2015, BAM instituted proceedings seeking an order setting aside the decision to accept the Eriugena tender and the selection of that party as preferred tenderer, orders requiring NTMA to reject the other tenders and an order appointing BAM as preferred tenderer. The central assertion in the case was that NTMA was not entitled under the Invitation to Negotiate provisions and the relevant legal rules to accept a tender that was received in whole or in part after the expiration of the time fixed as the deadline. In June 2015, the High Court concluded that it would order discovery broadly, but subject to conditions, to which BAM had made clear its agreement that protected the contents of rival tenders and the marking of the bids from disclosure. NTMA and the second respondent/appellant, the Minister for Education and Skills, appealed to the Court of Appeal against the High Court order, contending that the trial judge made a number of errors of law and of fact which underpinned the analysis in the judgment and that he overstated the distinction between judicial review and public procurement review proceedings. They sought to appeal the ruling requiring the discovery of documentation. NTMA submitted that the trial judge went about his task in relation to the discovery application in the wrong way; he ought to have begun at the beginning with a consideration of the case and the issues that arose in it before addressing the question of discovery and whether the particular requests made were indeed in respect of documents that were relevant and necessary for the fair disposal of the action. BAM submitted that the trial judge was correct in law and in fact by finding that the documents sought were relevant, necessary and proportionate and so there was no basis for disturbing the High Court order.

Held by the Court that, having applied Framus v CRH [2004] 2 IR 20, the discovery that was ordered was sufficient to meet the requirements of O. 31, r. 12 of the Rules of the Superior Courts for discovery of documents relating to the matters in issue in the case. The Court held that the High Court judge made the error of considering that what was relevant to the receipt of the bid must be relevant to the action. The Court noted that he did not take account of the actual legal issues arising in the challenge by BAM to the decision. The Court held that the trial judge was in error in seeming to be critical of NTMA for having made concessions or in ignoring the fact that they were made when deciding what the issues were. The Court reasoned that if a party admits a certain state of affairs that is relevant to the issues in the case, that reduces the zone of controversy; it is unnecessary in those circumstances for the other party to adduce evidence to establish the fact that has been admitted. The Court held that there may be reasons why it would be legitimate to do that, but in normal circumstances and in the absence of some particular reason to so do, something that is conceded is not the subject of evidence. The Court held that the trial judge erred in thinking that he could find the issues in the case elsewhere than in the pleadings, in permitting discovery relating to the underlying dispute rather than the legal action and in ordering discovery of such breadth that it could only be for the purpose of testing credibility.

The Court held that it would allow the appeal by NTMA.

Appeal allowed.

1

This is an appeal by NTMA against an order made by the High Court (Barrett J.) on 15th July 2015 on the application of BAM for discovery of 18 categories of documents described under five headings. The substantive proceedings are a challenge by BAM to the identification by NTMA of a competitor as the Preferred Tenderer in respect of a major public procurement contract.

2

The competition is for the design, finance, construction and maintenance of a Central Quad and an East Quad for DIT at the former St. Brendan's Hospital site at Grangegorman, Dublin 7. NTMA is the agency with responsibility for awarding the contract, which is governed by the Procurement Directive and by the European Communities (Award of Public Authorities' Contract) Regulations 2006 ( S.I. 329 of 2006). Order 84A of the Rules of the Superior Courts prescribes the procedure to be followed in a challenge to the award of a contract to which the Regulations apply.

3

BAM was one of three qualifying tenderers for the contract. On 27th February 2015, the NTMA notified BAM that it had identified one of the other tenderers, Eriugena, as the tenderer with the most economically advantageous tender and that it would now proceed accordingly. The letter also included a paragraph as follows: -

‘The Authority wishes to note that at the time of submission of the Tender documents to Asite, the uploading of a small number of the Eriugena documents was not completed until shortly after the 5pm deadline on 28 November 2014. Having investigated the matter, the Authority was fullysatisfied that no unfair advantage was gained by Eriugena in the circumstances and the Authority exercised its discretion to accept the Eriugena Tender prior to the evaluation exercise commencing.’

4

In subsequent correspondence in March 2015, NTMA explained that it had considered the situation following receipt of the various bids and had decided to receive Eriugena's tender, notwithstanding that part of it came in after the deadline. NTMA said that eight documents out of a total of 280 were not uploaded to the Asite website by the 17:00 deadline; the late documents were received in complete form between 17:03 and 18:13; the documents were not modified after the deadline; some of the documents contain material that was already included in documents submitted on time; the Authority considered that Eriugena might not have been solely to blame for the late completion of the uploading process.

5

On 27th March 2015, BAM instituted proceedings pursuant to Council Directives 2004/18/EC and 89/665/EC, the European Communities (Award of Public Authorities' Contracts) Regulations 2006 ( SI 329 of 2006) and the European Communities (Public Authorities' Contracts) (Review Procedures) Regulations 2010 ( S.I. 130 of 2010). The reliefs sought include an order setting aside the decision to accept the Eriugena tender and the selection of that party as preferred tenderer, orders requiring NTMA to reject the other tenders and an order appointing BAM as preferred tenderer. The central and essential assertion in the case is that NTMA was not entitled under the Invitation to Negotiate provisions and the relevant legal rules to accept a tender that was received in whole or in part after the expiration of the time fixed as the deadline.

6

It subsequently emerged in Mr. McCarthy's replying affidavit on behalf of NTMA that Kajima, the third bidder, was late with delivery of part of its tender documentation for the competition and in its case also NTMA accepted the tender.

7

In that case, some 37 documents were received at the website by 17:00 and completed their upload at 18:58. Of the 37 files, 10 were modified after the deadline. Mr. McCarthy explained that the tender late files had either not been worked on post-deadline or those that had been modified after 17:00 had amendments that were minor and non-material.

8

In its statement of grounds, BAM seeks a variety of reliefs, including an order setting aside the decision of the NTMA to select Eriugena as the preferred tenderer; an order requiring NTMA to appoint BAM as the preferred tenderer; a declaration that the decision by NTMA to accept the Eriugena tender was in breach of public procurement law and the Procurement Regulations, the Procurement Directive and the Remedies Directive and Regulations in addition to the general principles of European law. It also seeks a declaration that the decision of the NTMA to accept a tender submitted after the expiry of the deadline was ultra vires, invalid and of no legal effect on the grounds, inter alia, that it was vitiated by manifest errors of law and of fact and was based on relevant considerations.

9

The grounds upon which relief is sought may be summarised as follows:

A. The NTMA did not have any discretion to accept a tender that in whole or in part was received after the deadline specified in the Invitation to Tender Notice.

B. The NTMA misdirected itself in law and made a manifest error of law in considering that it had a discretion to accept a tender that was received after the expiry of the deadline, and insofar as the authority purported to rely on specific provisions in s. 4 of the ITN, it misdirected itself and thereby made a manifest error of law.

C. The authority failed to comply with the requirements of non-discrimination, equal treatment, transparency and proportionality. This ground proceeds on the alternative assumption, which is rejected by the applicant, that NTMA did have a discretion, but BAM submits that it could only be exercised in exceptional...

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