BAM PPP PGGM Infrastructure Cooperatie UA v National Treasury Management Agency & Min for Education & Skills
| Jurisdiction | Ireland |
| Judge | Mr Justice Max Barrett |
| Judgment Date | 15 June 2015 |
| Neutral Citation | [2015] IEHC 370 |
| Court | High Court |
| Date | 15 June 2015 |
[2015] IEHC 370
THE HIGH COURT
BETWEEN:
AND
Government contract – Practice & Procedure – Acceptance of late tenders – Discovery of documents
Facts: Following the respondents' invitation to negotiate for valuable works contract, three bidders were found to be eligible to submit final tenders, the applicant being one of them. The applicant challenged the decision of the first named respondent to submit the late tender of the other bidder despite the fact that the applicant submitted its tender on time. The applicant also sought discovery of certain documents.
Mr. Justice Max Barrett granted an order to the applicant for discovery of certain documents in part. The Court held that an order for discovery should be granted only if it was relevant and necessary for the fair disposal of the issues in the case and if the decision was challenged as unreasonable or irrational, the necessity of discovery of documents emanating from that impugned decision did not arise. The Court held that in the subject case, it would be pertinent to seek discovery of the documents regarding the assessment, evaluation and review of the tenders that resulted in the late acceptance of tenders. The Court found that there were dispute of facts in the case and discovery of documents would not lead any hardship to the first defendant as the matter related to only two tenders.
JUDGMENT of Mr Justice Max Barrett delivered on 15th June, 2015.
1. Background. It seems such a small matter in one way, but it has a real significance in cash terms. What happened can be briefly stated. The respondents issued an invitation to negotiate (ITN) on 28 th April, 2014, for a valuable works contract. Three tenderers pre-qualified and were eligible to submit final tenders: BAM (the applicant in these proceedings), Eriguena and Kajima. Among the requirements of the ITN was the requirement that the completed final tenders be submitted by 17:00 on 28 th November, 2014. By letter dated 27 th February, 2015, the NTMA informed BAM that it had accepted the final tender submitted by Eriugena even though part of that tender was submitted after the 17:00 deadline. BAM has since learned that Kajima also failed to submit all of its tender documentation by the 17:00 deadline. That leaves BAM as the only party that submitted its completed final tender by the required cut-off time. And that is what has led to the commencement of the within proceedings pursuant to the Remedies Regulations, and the bringing of the related discovery application that is the subject of this judgment.
2. Essential Issues Arising. It appears that the key issues arising in the within proceedings are six-fold. First, does the NTMA enjoy a discretion to accept late tenders? Second, was there a manifest error in the manner in which the NTMA purported to exercise such alleged discretion? Third, did the NTMA mis-direct itself as to the basis for the alleged discretion? Fourth, did the NTMA fail to comply with requirements of transparency, non-discrimination, equal treatment and proportionality? Fifth, did the NTMA take into account irrelevant considerations in deciding to accept late tenders? Sixth, did the NTMA fail to take into account relevant considerations in deciding to accept late tenders?
3. Categories of Discovery. BAM seeks discovery of six categories of documents. With the limited exception of certain aspects of one category (Category 5), and a discrete category (Category 6) which is agreed, all of the documents relate to the late submission of tenders and are limited broadly, though not quite exactly, to the two-month time period from 28 th November, 2015 to 23 rd January, 2015. That is not a great length of time, especially as it embraces the end-of-year vacation period, so it is hard to believe that oceans of relevant documentation would have been generated in that timeframe and fall now to be discovered.
4. Documentation sought. The discovery sought may be summarised as follows:
· - Category 1. Certain documents related to the late uploading of documents by Eriugena and Kajima.
· - Category 2. Certain documents related to the investigations and enquiries undertaken by the NTMA in relation to late tenders.
· - Category 3. Certain documents related to the assessment by the NTMA of whether to accept the late tenders of Eriugena and Kajima.
· - Category 4. Certain documents related to the decision of the NTMA to accept the late tenders.
· - Category 5. Certain documents related to particular internal NTMA matters, such as the applicable protocols, correspondence related to the late tenders, and names of relevant personnel.
· - Category 6. Certain documents related to the consequence of the submission of a late draft tender.
5. Counsel for BAM made clear at the hearings that BAM is not seeking access in the within application to documentation or information that would result in its knowing (a) the content of such documentation as was furnished to the NTMA by Eriugena and Kajima respectively, or (b) the marking by the NTMA of the respective tenders of Eriugena and Kajima. Accordingly, any order as to discovery made by the court will be subject to the overriding caveat that no such information aforesaid is to be provided to BAM pursuant to such order.
6. Applicable principles. It seems safe to hazard that, sitting in a Victorian-age courtroom, Brett L.J. never envisioned the scale of work that his judgment in Peruvian Guano would engender in our data and documentation-rich Information Age when discovery costs so much money, time and resources, typically unleashes a sea documentation which contains only a limited number of documents that are of central focus at the later trial, rarely if ever results in a 'Eureka!' moment in which documentation entirely resolves an issue arising, and is intrinsically vulnerable to abuse. Be that as it may, the court must take the law as it finds it, not as it might like it to be. And when it comes to applications for discovery, the governing principles are well-established, if founded ultimately on precepts from a long-distant and very different era.
7. Relevance and necessity. An applicant for discovery must demonstrate that the documents sought are both relevant to the issues arising and necessary for the fair disposal of same. In Framus v. CRH plc [2004] 2 I.R. 20, a case that was concerned with a claim for damages for losses allegedly sustained from unlawful and anticompetitive practices allegedly engaged in by the defendants in the markets for cement and related products in the State, certain discovery orders were made in the High Court and appealed unsuccessfully to the Supreme Court. (A separate ground of appeal concerning the amount of security for costs was successful). In the course of a lengthy judgment, with which McGuinness and Geoghegan JJ. agreed, Murray J. noted, at p.38, that when it comes to the issue of whether or not to grant discovery "the primary test is whether the documents are relevant to the issues between the parties. Once that is established it will follow in most cases that their discovery is necessary for the fair disposal of those issues." Although this just-quoted text is the segment of the judgment to which the court was referred by BAM, it is perhaps worth noting that it comes in the context of a brief excursus by Murray J. on the difficulties of delay and expense that discovery, especially a too-wide order for discovery, can engender. Thus Murray J. also notes at p.38 of his judgment that:
"It seems to me that in certain circumstances a too wide ranging order for discovery may be an obstacle to the fair disposal of proceedings rather than the converse....I think it follows that there must be some proportionality between the extent or volume of the documents to be discovered and the degree to which the documents are likely to advance the case of the applicant or damage the case of his or her opponent in addition to ensuring that no party is taken by surprise by the production of documents at a trial."
8. This observation, as Murray J. himself observes in his judgment, is not to gainsay the primary test to which he refers and his summary of which has been quoted above. However, it shows that the primary test does not exist in a vacuum but falls to be applied in the context of other considerations arising. (The court returns to the issue of proportionality later below).
9. The test of relevance was summarised in Aquatechnologie Limited v. National Standards Authority of Ireland [2000] IESC 64, a case that arose from an application by the applicant (appellant) for a certificate that certain plastic piping conformed with a particular standard (a certification of some importance in the context of buildings legislation). The successful appeal brought to the Supreme Court arose from a High Court decision to refuse an application for discovery. In his judgment, at p.11, Murray J. states that:
"[D]ocuments sought on discovery must be relevant, directly or...
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