BAM PPP PGGM Infrastructure Cooperative U.a. v National Treasury Management Agency

• Jurisdiction: Ireland
• Judge: Mr. Justice Robert Haughton
• Judgment Date: 06 October 2016
• Neutral Citation: [2016] IEHC 546
• Date: 06 October 2016
• Court: High Court
• Docket Number: [2015 No. 176 JR] [2015 No. 35 COM]

[2016] IEHC 546

THE HIGH COURT

COMMERCIAL

Haughton Robert J.

[2015 No. 176 JR]

[2015 No. 35 COM]

IN THE MATTER OF COUNCIL DIRECTIVE 2004/18/EC (AS AMENDED)

AND IN THE MATTER OF THE EUROPEAN COMMUNITIES (AWARD OF PUBLIC AUTHORITIES, CONTRACTS (REGULATIONS) 2006 (S.I. 329 OF 2006)

AND IN THE MATTER OF COUNCIL AND DIRECTIVE 89/665/EEC (AS AMENDED)

AND IN THE MATTER OF THE EUROPEAN COMMUNITIES (PUBLIC AUTHORITIES' CONTRACTS) (REVIEW PROCEDURES) REGULATIONS 2010 (S.I. 130 OF 2010)

BETWEEN

BAM PPP PGGM INFRASTRUCTURE COOPERATIE U.a.

APPLICANT

AND

NATIONAL TREASURY MANAGEMENT AGENCY

AND

MINISTER FOR EDUCATION AND SKILLS

RESPONDENTS

International law – Public procurement – Council Directive 89/665/EC (Remedies Directive) – European Communities (Public Authorities' Contracts) (Review Procedures) Regulations 2010 (Remedies Regulations) – European Communities (Award of Public Authorities' Contract) Regulations 2006 (Procurement Regulations) – Whether acceptance of late tender was in breach of general principle of transparency – O.84A, r. 4(1) of the Rules of the Superior Courts 1986 – Fault of public authority

Facts: The applicant, being an unsuccessful tenderer by way of the present application, sought an order for setting aside the decision of the first named respondent for accepting the late tender of the preferred tenderer. The applicant contended that the first named respondent was not vested with discretion under the terms of the Invitation to Negotiate (ITN) and the concerned European Regulations to accept the late tender. The first named respondent contended that it had discretion under ITN to accept late tender and the same was done in compliance of general principles of transparency and proportionality and also taking relevant factors into account.

Mr. Justice Robert Haughton dismissed the application of the applicant. The Court held that the allegation concerning transparency was inadmissible as it was not appropriately pleaded and thus, there was non-compliance of reg. 8.4 of the Remedies Regulations by the applicant. The Court found that the first named respondent had the discretion under ITN to receive late tender. The Court held that the first named respondent gave detailed reasons to the applicant for its decision to accept late tender and thus, the said decision was a rational decision and enabled the applicant to make an informed opinion. The Court observed that Procurement Regulations provided for an extension of deadline to a contracting authority under certain circumstances provided that there was a compliance of general principles in relation to the procurement of public contracts. The Court found that there existed no authority in International law that makes it impermissible to extend the deadline for a public procurement tender.

JUDGMENT of Mr. Justice Robert Haughton delivered on the 6th day of October, 2016

Introduction

1 These proceedings relate to the public procurement process in respect of the design, finance, construction and maintenance of a Central Quad and East Quad for the Dublin Institute of Technology ('DIT') at the former St. Brendan's Hospital site at Grangegorman, Dublin 7 ('the Project').

2 The applicant ('BAM') is a company which was incorporated on 17th of May, 2011, in the Netherlands.

3 The second named respondent ('the Minister') is the authority for the project for the purposes of Directive 2004/18/CC of 31st March, 2004, "on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts" ('the Procurement Directive'). The first named respondent ('NTMA' or 'the Authority') is procuring the project in its capacity as agent for and on behalf of the Minister in accordance with the National Development Finance Agency Amendment Act 2007, and as successor to the National Development Finance Agency ('NDFA'), for which the NTMA was substituted by Schedule 4 of the National Treasury Management Agency (Amendment) Act 2014.

4 BAM was one of three qualifying tenderers for the project, the other two being Eriugena and Kajima. On 27th February, 2015, the NTMA notified BA M that it had identified Eriugena as the tenderer with the most economically advantageous tender and that it would now proceed accordingly. The letter also included the following paragraph :-

'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 28th November, 2014. Having investigated the matter, the Authority was fully satisfied 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.'

5 Following further correspondence BAM instituted these proceedings on 27th March, 2015, seeking a number of reliefs including orders setting aside the decision of NTMA to accept the late tender submitted by Eriugena, and the decision to accept Eriugena as preferred tenderer. The central assertion in the case is that the NTMA was not entitled under the Invitation to Negotiate ('ITN') 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 for receipt of tenders.

The Relevant Facts

6 The Project was announced on 17th July, 2012, as part of a wider government-supported urban regeneration development known as 'the Grangegorman Development'. The European Investment Bank is a co-funder. The Project provides for the relocation and accommodation of approximately 10,000 students from 15 existing DIT schools, and will provide approximately 50,000m2 of teaching space through two principal buildings namely the Central Quad and East Quad.

7 By contract notice published in the Official Journal of the European Union on 31st October, 2013, the NDFA published notice of the contract for the Project. The expected capital value of the Project stated in the contract notice was €180 - €200 million, which 'will be procured under a single PPP contract using the negotiated procedure'.

8 Based on pre-qualification submissions received by the NDFA three tenderers were pre-qualified and invited to tender for the process: BAM, Eriugena (a consortium comprising MacQuarie Capital Group Ltd., FCC Construction S.A. and John Sisk and Sons (Holdings) Ltd.) and a Kajima consortium (comprising Kajima Partnerships Ltd., Infrared Capital Partners Ltd., Brookfield Multiplex Construction Europe Ltd. and Bilfinger FN (HSG Zander)).

9 The ITN was then issued to the three pre-qualified tenderers on 28th April, 2014. It is a lengthy document running to 164 pages. It sets out details of the tender process and the timeframes and rules applicable, and it will be referred to in greater detail later in this judgment as its terms fall to be construed by the Court. As it provides for a negotiated procedure, it facilitates interaction between tenderers and the Authority, discussion of tender requirements, and the proposal of solutions. It provides for the submission of the final tender and thereafter, evaluation by the NDFA in accordance with the award criteria disclosed in the ITN. Based on that evaluation the Authority selects a preferred tenderer with whom it would engage with a view to awarding the contract for the Project to that preferred tenderer, although such an award is not inevitable.

10 The consultation process allowed for five face-to-face meetings between the NTMA and each tenderer. It provided for a query procedure where the tenderers were entitled to raise queries for the purpose of gaining a better understanding of the requirements for the Project. Clause 2.3 set out on 'Indicative Timetable', and the most relevant entries are as follows:-

Week	Date	ITN Task
1	28 Apr. 2014	Issue ITN Documents
21	19 Sep. 2014	Tenderers submit Draft Tenders ('Draft Tender Submission Date')
23	3 Oct. 2014	Authority issues Draft Tender responses
29	14 Nov. 2014	Query Closing Date
31	28 Nov. 2014	Tenderers submit Tenders ('Tender Submission Date')
43	17 Feb. 2015	Notification of Preferred Tenderer
78	30 Sept. 2015	Award of Project Agreement to PPP Co. ('Commencement Date')

11 As can be seen from this table the tenderers were to submit draft tenders by 19th September, 2014, and thereafter they would receive responses. The ITN made provision for some further consultation before the 'Query Closing Date', and the Final Tenders were to be submitted on 28th November, 2014. Thus it was a structured consultation process over a thirty-one week period. Five formal meetings were held with each tenderer to discuss financial, technical and legal aspects of the Project and to assist tenderers in developing their proposals. Structured feedback was provided to each tenderer. Two of the consultation meetings were held with each tenderer between submission of the Draft Tenders and the Final Tenders submission. All consultation meetings took place between June 2014 and October 2014, and over seven hundred written queries from the three tenderers were received and responded to over that period. In addition, there were opportunities for site visits and meetings with other interested parties such as Dublin City Council.

12 Clause 6 'TENDERS' contains the following clause 6.1:-

'6.1 Tender Deadline.

Tenders will be received in soft copy by the Authority by 17:00 on the Tender Submission Date for Tenders as indicated in section 2.3 (Indicative Timetable).'

13 Tenderers were required to send submissions and tenders to NTMA electronically via 'Asite', a tendering portal used by the NTMA to conduct the tender process. This is described thus in the affidavit of Mr. Dennis McCarthy sworn on behalf of the NTMA on 27th April, 2015:-

'4.12 It...