Copymoore Ltd v Commissioners of Public Works of Ireland

• Jurisdiction: Ireland
• Judge: Mr. Justice McDermott
• Judgment Date: 11 November 2016
• Neutral Citation: [2016] IEHC 709
• Docket Number: [2013 No. 211 JR]
• Court: High Court
• Date: 11 November 2016

BETWEEN

COPYMOORE LIMITED, CORK OFFICE MACHINES AND SUPPLIES LIMITED, CUSKEN LIMITED, EMS COPIER SERVICES LIMITED, EUROTECH OFFICE EQUIPMENT LIMITED, INEST LIMITED, MBE MALLOW LIMITED, O'ROURKE OFFICE SUPPLIES LIMITED, SHARPTEXT CORK LIMITED

AND

TOS IRELAND LIMITED

APPLICANTS

AND

COMMISSIONERS OF PUBLIC WORKS OF IRELAND

RESPONDENT

[2016] IEHC 709

McDermott J.

[2013 No. 211 JR]

THE HIGH COURT

JUDICIAL REVIEW

Public Contracts – Reg. 8 (1) of the European Communities (Public Authorities Contracts) (Review Procedures) Regulations 2010 – Regs. 17, 33, and 52 of the European Communities (Award of Public Authorities Contracts) Regulations 2006 ('2006 Regulations') – S. 4 (1) of the Competition Act 2002 – Directive 2004/18/EC

Facts: The applicants sought an order for the suspension of the procedure for the establishment or reward by the respondent in relation to a proposed multi-supplier framework agreement for the supply of colour printers and other devices. The applicants also sought other ancillary reliefs. The applicants contended that the relevant qualification criteria set out by the respondent in the request for tenders in order to establish framework agreement was disproportionate and contrary to regs. 17, 33 and 52 of the 2006 Regulations. Another issue arose as to the maintainability of the proceedings by some of the applicants who had formed a consortium as per the guidelines laid down by the respondent to make tenders.

Mr. Justice McDermott refused to grant the desired reliefs to the applicants. The Court held that the only applicants who had not applied for tenders were entitled to maintain the present proceedings and not the other applicants who had formed the groups and made the tender satisfying the technical and financial qualification for the purpose of making the tender. The Court found that those other applicants did not challenge any illegality and unlawfulness in the procedure for making the said tender and hence, they were precluded from challenging those issues in the present proceedings. The Court held that the qualification criteria set out by the respondent was in compliance of Directive 2004/18/EC as the respondent had taken appropriate measures, surveys, etc. to estimate the cost-effectiveness of the proposed framework agreement. The Court observed that an average of two million euro turnover qualification criteria set out by the respondent was legitimate, reasonable and proportionate. The Court further held that since the respondent was not engaged in procuring goods and services but merely developed a public procurement procedure for procurement of printers and consumables, the provisions of the Competition Act 2002 was inapplicable to the respondent.

JUDGMENT of Mr. Justice McDermott delivered on the 11th of November, 2016

1 This is an application for judicial review in which the applicants seek the following reliefs:-

1. An Order pursuant to Regulation 8(1) of the European Communities (Public Authorities Contracts) (Review Procedures) Regulations 2010 (hereafter 'the Remedies Regulations') suspending the procedure for the establishment or award by the respondent of a Multi-Supplier Framework Agreement for the supply of Monochrome and Colour Printers, Monochrome and Colour Multi-Function Devices (hereinafter 'the proposed Framework Agreement').

2. An Order pursuant to Regulation 9(3) of the Remedies Regulations setting aside the Economic and Financial Standing Qualification Criteria specified in s. 3.2.A of the Request for Tenders to establish a Multi-Supplier Framework Agreement for the supply of Monochrome and Colour Printers, Monochrome and Colour Multi-Function Devices dated 31st January, 2013 (hereinafter 'the Request for Tenders').

3. An Order restraining the respondents from taking any further steps to establish a Multi-Supplier Framework Agreement for the supply of Monochrome and Colour Printers and Monochrome and Colour Multi-Function Devices under the Request for Tenders.

4. An Order pursuant to Regulation 9(3) of the Remedies Regulations setting aside the Technical and Professional Ability Qualification Criteria specified in s. 3.2.B of the Request for Tenders.

5. An Order restraining the respondent from taking any further steps to establish or award the proposed Framework Agreement pursuant to the Request for Tenders or otherwise.

6. An Order declaring the Economic and Financial Standing Qualification Criteria (specified in s. 3.2.A of the Request for Tenders) to be discriminatory and/or contrary to the provisions of s. 4(1) of the Competition Act 2002.

7. An Order declaring the Technical and Professional Ability Qualification Criteria (specified in s. 3.2.B of the Request for Tenders) to be discriminatory and/or contrary to the provisions of s. 4(1) of the Competition Act 2002.

2 Following the initial leave to application for relief, an application was made to amend the grounds which was granted by the Supreme Court on the 7th November, 2014 [2014] IESC 63. A statement of grounds of opposition was initially delivered on 15th August, 2013. Further affidavits were exchanged in the course of the application for the amendment of grounds. Although the case was said to be ready for hearing additional affidavits were exchanged during the course of the hearing. As discovery was not completed by the time of the hearing additional documents were introduced and exchanged between the parties during the course of the hearing. At various stages of the hearing, discovery was said to be 'ongoing'. There was extensive and detailed cross examination of expert and other witnesses during the hearing. The exchange of affidavits during the course of the hearing and the 'ongoing' discovery was a most unsatisfactory aspect of the hearing which gave rise to considerable difficulties for the court.

Background

3 The applicants are engaged in the sale, supply, service and maintenance of monochrome and colour printers and similar multi-functional devices in the Republic of Ireland. They supplied printers and devices under well-established procedures with a number of public bodies or entities. Each applicant tendered individually to an individual client for the sale, supply and servicing of printers and related services. Each of the applicants is described as a 'small/medium sized enterprise (SME) operating in the market place'. They claim that between 40% and 80% of their sales of 'photocopiers/multi-functional devices' are made to State bodies or entities.

4 The nature and extent of this business is set out in the affidavit of Mr. Eddie Davis in respect of each of the applicants. Copymoore Ltd. supply primary schools, secondary schools, third level colleges, Government departments, hospitals and State agencies and have in excess of 2,000 machines placed with these organisations with different support contracts ranging from finish print services to toner supply. Cork Office Machines and Supplies Ltd. supplied copier equipment and service agreements to 74 schools and managed print services to 12 national schools. It provided a further 12 secondary schools, 2 hospitals, 2 County Councils and 4 Youth Reach centres with copier equipment and service agreements. Cusken Ltd. has approximately 300 agreements with Public Sector Bodies including educational bodies, the Health Service Executive, VECs, FÁS, and various local and national government agencies, funded projects and community projects. EMS Copier Services Ltd. operated managed print agreements with 80 to 90 schools, colleges, Youth Reach Projects and Adult Education Centres and community and national schools. It had service agreements with 150 to 160 schools, colleges, Youth Reach and other centres. Eurotech Office Equipment Ltd. had agreements with 7 local authorities, 2 VECs, 56 schools, 7 other State agencies including FÁS, of which 67 were service agreements and 5 were managed print service agreements.

5 INEST Ltd. supplied copier and printer equipment and service agreements to 123 primary schools, 32 secondary schools, 3 Third Level Institutes of Technology and 1 university. It also supplied printers and service agreements to 7 hospitals, 4 of which had total managed print and copy solutions under which 112 machines were operated under service contracts. It supplied copier and service agreements to 5 County Councils operating 74 machines under service contracts. It supplied all copier printers and colour multi-functional printers nationally to the Marine Institute including total managed print and copy solutions since 2006 under which 36 machines were contracted. MBE Mallow Ltd. supplied 180 schools service contracts and 25 managed print contracts. O'Rourke Office Supplies Ltd. supplied copier equipment and service agreements to 40 schools and 15 secondary schools. It supplied copiers and printers to 4 hospitals, copier equipment and service agreements to 2 County Councils and 10 machines with service arrangements to the VEC and other colleges. Sharptext Cork Ltd. supplied managed print contracts and service agreements including toner and parts to 2 County Councils, 1 City Council, 4 hospitals, over 100 primary and secondary schools, VECs in Cork city and County and 2 third level colleges. TOS Ireland Ltd. supplied copier equipment and service agreements to 115 national and secondary schools, 7 universities, 2 VECs in 20 locations, 16 hospitals, 4 County Councils, 25 Youth Reach centres, 9 Government departments, 15 Government funded organisations including FÁS and other charities, and 12 semi-state bodies.

The Request for Tenders

6 The Commissioner of Public Works of Ireland was established and appointed under the State Authorities (Development and Management) Act 1993 as amended by the Commissioners of Public Works (Functions and Powers) Act 1996 and is charged with the provision to State Authorities and persons specified by the relevant...