Baxter Healthcare Ltd v Health Service Executive and Another
| Jurisdiction | Ireland |
| Judge | MR JUSTICE MICHAEL PEART |
| Judgment Date | 16 July 2013 |
| Neutral Citation | [2013] IEHC 413 |
| Court | High Court |
| Date | 16 July 2013 |
[2013] IEHC 413
THE HIGH COURT
BETWEEN:
AND
AND
CMSN v IRELAND 2010 ECR 1-11807
TELAUSTRIA VERLAGS GMBH & TELEFONADRESSNGMBH v COMMISSION 2000 ECR 1 -10745
STRONG SEGURANCA SA v MUNICIPIO DE SINTRA 2011 ECR I-01865
RELEASE SPEECH THERAPY LTD v HSE UNREP MCMAHON 18.2.2011 2011/44/125262011 IEHC 57
FRESENIUS MEDICAL CARE (IRELAND) LTD v HSE UNREP PEART 16.7.2013 2013 IEHC 414
LAW OF PUBLIC UTILITIES PROCUREMENT 2ED 2005 194
EASYCOACH LTD v DEPARTMENT FOR REGIONAL DEV 2012 NIQB 10
EUROPEAN COMMUNITIES (PUBLIC AUTHORITIES CONTRACTS) REVIEW PROCEDURES REGS 2010 SI 130/2010
REVIEW OF AWARD OF PUBLIC CONTRACTS SI 420/2010
RSC O.84A RSC 1986
DEKRA EIREANN TEO v MIN FOR ENVIRONMENT 2003 2 IR 270
COMMISSION v IRELAND 2010 ECR I-859
EUROPEAN COMMUNITIES (PUBLIC AUTHORITIES CONTRACTS) REVIEW PROCEDURES REGS 2010 SI 130/2010 REG 7(2)
EUROPEAN COMMUNITIES (PUBLIC AUTHORITIES CONTRACTS) REVIEW PROCEDURES REGS 2010 SI 130/2010 REG 8(1)
RSC 84A r2(C)
SIAC CONSTRUCTION LTD v NATIONAL ROADS AUTHORITY UNREP KELLY 16.7.2004 2004/4/10661 2004 IEHC 128
VEOLIA WATER UK PLC v FINGAL CO COUNCIL (NO 1) 2007 1 IR 690
JOBSIN CO UK PLC v DEPT OF HEALTH 2002 1 CMLR 44
EUROPEAN COMMUNITIES (AWARD OF PUBLIC AUTHORITIES CONTRACTS) REGULATIONS 2006 SI 329/2006 REG 47(7)(B)
CONSOLIDATED PUBLIC PROCUREMENT DIRECTIVE 2004/18EC ART 41(2) ANNEX 11B STARTHERE
COMMISSION v REPUBLIC OF FRANCE C-340/02 UNREP ECJ 14.10.2004
ATI EAC SRL v ACTV VENEZIA SPA 2005 ECR II-154
TIDELAND SIGNAL LTD v COMMISSION 2002 ECR -11-3781
CLINTON v DEPT OF EMPLOYMENT & ORS 2012 NIQB 2
PUBLIC PROCUREMENT
Tender
Contract for provision of services - Minimum requirements - Whether reference to incorrect tendering entity giving rise to ground for challenge - Time limits - Date of knowledge - Whether challenge to tender out of time - Culpability - Extension of time - Whether court ought to extend time - Award criteria - European Union law - Transparency - Equal treatment - Whether failure to disclose award criteria in tender - Whether distinction between treatment of Annex IIA and Annex IIB tenders in European Directive - Whether manifest or clear error in scoring of award criteria - Whether respondent entitled to score applicant's tender in manner done - Whether breach of principles of transparency and equal treatment - Whether respondent applied undisclosed criteria to tender process - Whether respondent ought to have clarified apparent ambiguity in tender - Whether formal error in tender - SIAC Construction Ltd v National Roads Authority [2004] IEHC 128, (Unrep, Kelly J, 16/7/2004); Veolia Water UK plc v Fingal County Council (No 1) [2006] IEHC 137, [2007] 1 IR 690; Jobsin Co UK plc v Department of Health [2002] 1 CMLR 44; Uniplex (UK) Ltd v NHS Business Services Authority (Case C-406/08) [2010] ECR I-817; Easycoach Ltd Department for Regional Development [2012] NIQB 10; ATI EAC Srl v ACTV Venezia sPa (Case C331/04) [2005] ECR I-154; Tideland Signal Ltd v Commission (Case T-211/02) [2002] ECR I-3781; Commission v Ireland [2010] ECR I-11807; Telaustria Verlags GmbH v Telekom Austria [2001] ECR I-10745; Strong Seguranca SA v Municipio de Sintra (Case C-95/10) [2011] ECR I-1865; Release Speech Therapy Ltd v HSE [2011] IEHC 47, (Unrep, McMahon J, 18/2/2011); Dekra Éireann Teoranta v Minister for Environment [2003] 2 IR 270; Commission v Ireland [2010] ECR I-859; SIAC Construction v Mayo County Council [2001] ECR I-7725 and Fresenius Medical Care (Ireland) Ltd v Health Service Executive [2013] IEHC 414, (Unrep, Peart J, 16/7/2013) considered - Rules of the Superior Courts 1986 (SI 15/1986), O 84 & 84A - European Communities (Award of Public Authorities' Contracts) Regulations 2006 (SI 329/2006), reg 47 - European Communities (Public Authorities' Contracts) (Review Procedures) Regulations 2010 (SI 130/2010), regs 7 and 8 - Review of Award of Public Contracts (SI 420/2010) - Directive 2004/18/EEC, arts 23, 35, 41 and Annex II - Proceedings dismissed (2012/287JR - Peart J - 16/7/2013) [2013] IEHC 413
Baxter Healthcare Ltd v Health Service Executive
Facts The applicant had entered into a tendering competition regarding the provision of renal haemodialysis satellite units. The applicant tendered for two of the contracts while the notice party tendered for all four of the contracts. Ultimately the applicant was unsuccessful in its tendering and was unhappy with some of the procedures adopted. It contended that the notice party had not in fact made a valid tender and should not have proceeded to the final part of the competition. The applicant had a number of complaints as to how the procurement process was handled and sought to have the decision overturned. It was contended that there had been a failure to disclose award criteria, namely noise, activity and location as well as a failure to take account of information provided in relation to the Model of Care criterion. In addition there had been multiple errors in the awarding/deduction of marks in respect of the various tenders.
Held by Peart J in refusing the relief sought: The contract in question was an Annex IIB contract and therefore under European law it was left the authority to decide upon a tender process which observed principles of transparency, equal treatment, non-discrimination and general fairness. Although the winning party had been described as a different-named entity in the award of the tender (as opposed to its actual name), it was quite clear as to the identity of all the parties concerned. In respect of some of the complaints the applicant was out of time for raising them and had no good reason for the delay. In relation to some of the criteria the applicant had not fully indicated its position and had gone 'in blind' and had otherwise not availed of assistance or dialogue from the respondent that might have proved helpful. No manifest errors had been identified in the manner in which the tendering process had been carried out.
MR JUSTICE MICHAEL PEART DELIVERED ON THE 16th DAY OF JULY 2013:
1. The applicant ("Baxter") is a leading provider of healthcare services not just in Ireland but worldwide. Among its many activities, it has since 2004 provided a renal dialysis service at its facility in the Beacon Clinic at Sandyford, Dublin 18. To date that facility has, according to the applicant, been run in partnership with Beacon Medical Group ("BMG") which Baxter describes as its "nursing partner". It appears that Baxter provides the facility, the equipment and the consumables, the dialysis equipment, and in addition provides support services including technical and administrative services. I should say that an affidavit on behalf of the Notice Party seeks to suggest that the applicant's first affidavit overstates the applicant's involvement in the provision of renal services as such, and suggests that its involvement is limited to providing the facility, equipment and consumables, but does not provide the dialysis services as such. The Notice Party makes the point also that the Beacon entity providing these services at Beacon Court is Beacon Dialysis Services Limited, and not BMG as stated by the applicant in its first affidavit. It seems a small point to refer to so early in my judgment, but one will see in due course that it assumes some significance in relation to a couple of issues which are raised herein, and which I shall come to.
2. On the 27 th May 2011 the HSE published a public notice in the Official Journal to the European Union, and on the e-tenders website, by which it advertised a contract for the provision of renal haemodialysis satellite units to Dublin North East and Dublin Mid West.
3. The Contract was divided into 4 Lots. Lots 1 and 2 were in respect of units to be located in the area of Dublin North East, one being along the Ml Corridor, and the other being north of the River Liffey. Lots 3 and 4 were for the Dublin Mid-Leinster area. Lot 3 was to be located south of the River Liffey, but east of the River Dodder. Lot 4 was to be located south of the River Liffey but west of the River Dodder. It is Lots 3 and 4 only that are the subject of these proceedings.
4. The Contract notice went on to state that each unit would cater for approximately 80 patients, and, further, that HSE would not award all four Lots to any one contractor as its view is that the optimum service will require a minimum of two providers.
5. The Expression of Interest document (EOI) set out further information, including that the required services are "Annex IIB" services, and that, accordingly, only Articles 23 and 35(4) of the Consolidated Public Procurement Directive 2004/18/EC for the Award of public service contracts, as amended, would apply to the award of any contract. This EOI stated also that it was intended to conduct the procurement process in four phases in order to allow for direct dialogue with allow tenderers on all matters associated with the proposal. Those four phases were:
a a. Expression of Interest;
b b. Tender Proposals;
c c. Dialogue on Proposals;
d d. Award of Contract
6. A preliminary meeting (referred to as a plenary meeting) was held on the 7 th June 2011 with all interested parties. The applicant was represented at that meeting. A deadline for the submission of an EOI was set for the 22 nd June 2011, and the applicant complied with that deadline,...
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