Copymoore Ltd and Others v Commissioners of Public Works in Ireland

• Jurisdiction: Ireland
• Judge: Mr. Justice Hogan
• Judgment Date: 29 May 2013
• Neutral Citation: [2013] IEHC 230
• Court: High Court
• Date: 29 May 2013

Copymoore Ltd & Ors v Commissioners Of Public Works In Ireland

BETWEEN

COPYMOORE LIMITED, CORK OFFICE MACHINE AND SUPPLIERS LIMITED, CUSKEN LIMITED, EMS COPIER SERVICES LIMITED, EUROTECH OFFICE EQUIPMENT LMIITED, INEST LIMITED, NORMAC LIMITED, MBE MALLOW LIMITED, O'ROURKE OFFICE SUPPLIES LIMITED, SHARP TEXT CORK LIMITED AND TOS LIMITED

APPLICANTS

AND

THE COMMISSIONERS OF PUBLIC WORKS IN IRELAND

RESPONDENTS

[2013] IEHC 230

[No. 918 J.R./2012]

THE HIGH COURT

PUBLIC PROCUREMENT

Tender

European union - Eligible persons - Whether applicant having standing to challenge award of public contract - Whether entity which had not submitted tender entitled to challenge award of contract - Whether allegedly discriminatory specifications in tender constituting reason for plaintiff's failure to submit tender - Whether contract award notice in compliance with Regulations - Minister - Powers - Circular - Whether ministerial circular unlawfully amending tender - Whether circular mandated all public authorities to use services based upon outcome of tender - Whether applicant would have submitted tender if circular issued prior to tender - Time limits - Whether challenge to validity of circular brought within time - Whether circular having continuing effects on applicant - Grossman Air Service v Austria (Case C-230/02) [2004] ECR I-1829 and Ryanair v Minister for Transport [2009] IEHC 171, (Unrep, Finlay Geoghegan J, 2/4/2009) applied - McGowan v Labour Court [2013] IESC 21, (Unrep, SC, 9/5/2013) and Shell (E&P) Ireland Ltd v McGrath [2013] IESC 1, (Unrep, SC, 22/1/2013) considered - Lammerzahl GmbH v Freie Hansestadt Bremen (Case C-241/2006) [2007] ECR I-8415 distinguished - Rules of the Superior Courts 1985 (SI 15/1986), O 84 and O 84A - Circular 60/12 Public Procurement (Framework Agreements) - European Communities (Award of Public Authorities' Contracts) Regulations 2006 (SI 329/2006) - European Communities (Award of Public Authorities' Contracts) (Review Procedures) Regulations 2010 (SI 130/2010), art 4 - State Authorities (Development and Management) Act 1993 (No 1) - Commissioners of Public Works (Functions and Powers) Act 1996 (No 3) - Directive 89/605/EEC - Directive 07/66/EC - Relief granted (2012/918JR - Hogan J - 29/5/2013) [2013] IEHC 230

Copymoore Ltd v Commissioners of Public Works in Ireland

Facts: The applicants brought judicial review proceedings against the respondent in relation to a public service procurement process for the provision of managed print services throughout the public sector. The process resulted in the award of Framework Agreements to seven successful tenderers which invited them to then compete against each other. The applicants also sought to challenge the validity of a circular of the respondent which directed all public sector organisations to employ the successful tenderers for the supply of all managed print services. The applicants claimed that the tender had previously stated that the use of the Framework Agreements by the public sector organisations for such services would be optional. It was argued that this would now have a direct effect on them as they were companies engaged in the business of providing managed print services, predominantly to public sector organisations.

The applicants argued that the terms of the contract award failed to comply with the requirements of Part 13 of Schedule 5 of the European Communities (Award of Public Authorities" Contracts) Regulations 2006 (S.I. No. 329 of 2006)('The 2006 Regulations'). The respondent claimed that the contract award did comply with the requirements of the 2006 Regulations. It was also claimed that even if this was not so, the applicants had no standing to challenge on this point as they could not be deemed to be eligible persons under Article 4 of the European Communities (Public Authorities" Contracts) (Review Procedures) Regulations 2010 ('the 2010 Regulation')

Held by Hogan J that as none of the applicants had participated in the managed print services Framework Agreement, they could therefore not have been prejudiced by any contractual irregularities. There were exceptions to this rule, such as where an invitation to tender was not advertised properly, but these did not apply here. As a result, they could not be regarded as eligible persons under the 2010 Regulations to challenge the contract award.

In terms of the circular issued by the respondent, it was held that this had the effect of modifying the original tender by effectively making the managed print services Framework Agreement throughout the public sector mandatory which would have an effect on the applicants who previously had the opportunity to conduct such work. As the circular made the Framework Agreement mandatory, it was held that the respondent had acted ultra vires as incompatible with Directive 2004/18/EC and with the EU"s public procurement regime generally. As there was no issue with the applicants standing in this regard, declaratory relief was issued on this point.

PUBLIC PROCUREMENT: Tender

1 JUDGMENT of Mr. Justice Hogan delivered on 29th May, 2013

Part A: Introduction

2 1. In these proceedings brought under the review procedure provided for by Ord. 84A the applicants challenge the validity of a public service procurement process which resulted into the award of seven Framework Agreements with seven individual successful tenderers in February 2012 for what are known as "managed print services." "Managed print services" ("MPS") is an organisational concept whereby the document output of an organisation is outsourced to an external provider, so that responsibility for and management of the organisation's printing and imaging needs falls to that external provider. The Framework Agreements establish a contractual framework whereby the seven successful tenderers are invited to compete with each other through a series of min-competitions for the provision of managed print services throughout the public service.

3 2. The applicants further challenge the validity of a circular published by the Minister for Public Enterprise and Reform in July 2012. As we shall later see, the precise terms of this circular assume considerable importance for the purposes of this litigation, but for immediate purposes it is sufficient to say that the circular directed all public sector organisations to employ the successful tenderers for the supply of all managed print services. The tender had previously stated that the use of the Framework Agreements by the public sector organisations for such services was simply optional.

4 3. The applicants consist of eleven limited liability companies. Ten of these companies supply MPS to various public bodies, of which schools predominate. The other company, Normac Ltd., is engaged in the supply of consumables to the other ten companies, but does not directly supply print services itself. In that respect, its interest in the outcome of this litigation is probably more indirect than that of the other ten companies who are engaged directly in the supply of print services. But since nothing particularly turns on this - at least, so far as the facts of this case are concerned, given that the other ten companies are so engaged in such direct supply - I do not propose to differentiate between the eleven applicants for the purposes of either considering their standing to make this challenge or for the purposes of whether they can be regarded as "eligible persons" in a public procurement context.

5 4. The respondent is a statutory corporation whose powers have been clarified and amplified by the State Authorities (Development and Management) Act 1993 and the Commissioners of Public Works (Functions and Powers) Act 1996. It operates the National Procurement Services on behalf of the wider public sector.

6 5. On 19 ^th July, 2011, the Offices of Public Works (as contracting authority) invited tenders from service providers to participate in a framework for the supply of many print services to a variety of local authority and public sector organisations. The appendix to the request for tender defined MPS as follows;-

"Managed: framework members who are successful in mini competitions ("contractors") will take total responsibility for providing a wide range of printing and imaging solutions to meet the various MPS requirements of the clients...a choice of printer imaging devices will be required to meet the varying workloads of different clients. This will include, but is not limited to, the supply of all personalised, authenticated network print and imaging devices with secure print release (using proximity cards and scanners or PIN) the provision of all necessary software and toner, training and rationalisation of the organisations print and imaging fleet."

7 Print: contractors will provide day to day printing needs associated with the requirement of the clients. This will predominantly include standard A4 and A3 printing in both mono and colour using an array of printing - imaging devices capable of duplex printing, scanning, photocopying, faxing, collating and stapling. MPS does not include printing that is usually produced outside the office environment such as leaflets and posters.

8 Service: the service level requirement is at a minimum of 98% uptime must be maintained. The exact service level requirements will vary between different client organisations. Contractors will provide a nationwide on site service providing a single solution across single and multiple site client organisations with a broad national geographic spread."

9 6. Paragraph 1.4 of the request for tender stated that the object of the public procurement competition was:-

"To conclude a multi supply or framework with a maximum number of framework members of seven ("framework member") to provide the services....