Danninger v Bus Átha Cliath

• Jurisdiction: Ireland
• Judge: Mr. Justice Charleton
• Judgment Date: 23 February 2007
• Neutral Citation: [2007] IEHC 29
• Court: High Court
• Date: 23 February 2007

[2007] IEHC 29

THE HIGH COURT

[No. 589JR/2006]

DANNINGER v BUS ATHA CLIATH/DUBLIN BUS

JUDICIAL REVIEW

BETWEEN

DANNINGER

APPLICANT

and

BUS ÁTHA CLIATH

RESPONDENT

and

DEEPDRILL DEVELOPMENTS LIMITED TRADING AS O'DWYER LEISURE GROUP AND BENNETT (CONSTRUCTION) LIMITED

NOTICE PARTY

CONTRACT: Tender

CONTRACT

Tender

Judicial review - Public works contract - âÇÿBest and final offer' sought from parties after initial tender - Whether public works concession contract - Whether tendering process compliant with EU directives - Whether applicant precluded from relief because of delay - Whether prejudice suffered - Commission v Belgium (Case C-87/94) [1996] ECR I-2043; Resource Management Services v Westminster City Council [1999] 2 CMLR 849 applied - Commission v Italy (Case C-272/91) [1994] ECR I-01400; Gemeente Arnhem v BFI Holding (Case C-390/96) [1998[ ECR I-06821; Telaustria Verlags v Telekon Austria (Case C-324/98) [2000] ECR I-10745; Dekra Éireann Teo v Minister for Environment [2003] 2 IR 270; SIAC Construction Ltd v National Roads Authority [2004] IEHC 262 (Unrep, Kelly J, 16/7/2004); Advanced Totes Ltd v Bord na gCon [2004] IEHC 495 (Unrep, Murphy J, 20/12/2004); South Midlands Construction Ltd v Fingal County Council [2006] IEHC 137 (Unrep, Clarke J, 2/5/2006) considered - Rules of the Superior Courts 1986 (SI 15/1986), O 84A, r 4 - European Communities (Review Procedures for the Award of Public Supply, Public Works and Public Services Contracts) (No 2) Regulations 1994 (SI 309 of 1994) - Council Directive 93/37/EEC, articles 1, 7 and 11 - Relief refused (2006 589/JR - Charleton J - 23/02/2007) [2007] IEHC 29

Danninger v Bus Átha Cliath

The notice party won the contract to develop a site and the applicant lost. The applicant complained that Council Directive 93/37/EEC was not complied with in the award of the contract and therefore sought an order overturning it. The respondent and the notice party claimed that the award was made validly and in accordance with European law. They also contended that the applicant had been guilty of delay in bringing the proceedings.

Held by Charleton J. in refusing the relief sought that the process of tendering by the respondent was not unlawful. National and European Law required that parties who were given knowledge of a potential defect in tender procedures should move to seek the relief of the Court at the earliest opportunity.

Reporter: R.W.

Introduction

1 1. The applicant and the notice party are both entities that engage in property development. Bus Átha Cliath provides bus services for the Dublin city area and is an entity of Córas Iompair Éireann, being wholly owned by it. Prior to the Luas line being put in from Sandyford through to Connolly Station, one could catch a bus on Upper Abbey Street. This has been rendered impossible by the Luas line that runs there. The respondent made a decision to develop a site which it owns in that area so that it would become, on development, a bus station with a valuable commercial property above, below and to the sides of it.

2 2. At the time this project was advertised, it was subject to Council Directive 93/37/EEC of 14th June, 1993, concerning the coordination of procedures for the award of public works contracts. This directive was one of a long line setting out the law in this area. In applying review procedures in this area, I am bound by Council Directive 89/665/EEC of 21st December, 1989, on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts. These directives were signed into Irish law in simple form by way of, inter alia, the European Communities (Public Works) (Amendment) Regulations, 1994, S.I. 293/1994 and the European Communities (Review Procedures for the Award of Public Supply, Public Works and Public Services Contracts) (No. 2) Regulations, 1994, S.I. 309/1994. In turn, O. 84 of the Rules of the Superior Courts, which deals with the generality of judicial review applications, was amended through the introduction of a special rule in respect of these cases in S.I. 374/1998, the Rules of the Superior Courts (No. 4) (Review of the Award of Public Contracts) Rules, 1998.

3 3. The notice party won the contract to develop this site and the applicant lost. The applicant complains that Council Directive 93/37/EEC was not complied with in the award of the contract and therefore seeks an order of this court overturning it. The respondent and the notice party claim that the award was made validly and in accordance with European law. They further say that if it was not, such invalidity as the court might find does not entitle the applicant to judicial review, by reason of its delay in bringing these proceedings and by reason of its acquiescence in the procedure it now complains of.

4 4. My decision in this case revolves around the answer to three issues. Firstly, whether the project which the respondent wished to have developed for it was a public works contract or a public works concession contract under the relevant Directive. If it is the latter, much less strict rules apply to the tendering process which is concerned with the advertising of the tender opportunity only. If it is a public works contract, on the other hand, it is argued that an open or restricted procedure for the tender must apply: in addition the principles of non-discrimination, transparency and openness also require that a tender process end with an assessment of the bids when they are opened and there can be no room for a request being made for any further offer or, as the term of art puts it, "a best and final offer". The second issue is therefore whether a public works contract outlaws that form of double round tender procedure. The third issue is as to whether the applicant is disentitled to relief, the court exercising its fundamental discretion as to whether it should make an order in judicial review proceedings, by reason of the manner in which the applicant participated in the procedure, it is claimed with full knowledge of that flaw, if it be a flaw, and by reason of its delay in bringing proceedings. As a matter of fact, as human nature might dictate, the applicant only brought proceedings seeking to overturn the tender award when it discovered that it had lost.

Facts

5 5. The works in question here are to be built on a site that is just under 0.9 of an acre in area and which fronts onto Great Strand Street and Upper Abbey Street, a short walk from O'Connell Street. The respondent currently uses that land as a bus parking area. The lands are owned by Córas Iompair Éireann, as opposed to the respondent, and are a part of what may remain after a long standing plan, which never came to fruition, to build a large bus station in the centre city area in the vicinity of the Halfpenny Bridge.

6 6. On 14th September, 2005, a notice detailing certain building construction work, what was described as a public works concession, appeared in the Official Journal of the European Communities. This invited submissions to apply for tender documents from interested parties that:-

"...wished to be considered for inclusion on a tender list for a works concession involving the acquisition and development of a Q-35 Ha(0.87 acre) site at Abbey Street Upper/Strand Street Great in central Dublin. The project incorporates the creation of a bus interchange facility for Bus Átha Cliath at ground level and an overhead development consisting of four or more levels of accommodation. It is proposed that the funding for the Bus Interchange will be provided by the overhead development opportunity. The successful tenderer will be required to deliver the project in its totality including financing and managing the title project, seeking planning approval, and executing the construction and fit-out... Applicants are required to provide the information detailed under conditions for participation. Following evaluation of the details a minimum of five applicants will be invited to tender for selection as preferred bidder and negotiate the works concession contract with the contracting entity."

7 7. The tender documents were, no doubt, then in the course of preparation. A number of parties expressed interest, the applicants on 7th November, 2005, and a tender list was drawn up. By letter dated 22nd December, 2005, the respondent wrote to the applicants enclosing a bundle of documents which consisted of the tender form, the tender conditions and the particulars and conditions of sale for the development.

8 8. These documents clarify what was envisaged by the respondent. A short specification is given for the bus interchange facility. Basically, there are to be eight "drive through" bus bays allowing buses to turn into the facility from Upper Abbey Street and exit, going in a westerly direction towards the Four Courts, onto Great Strand Street. There are to be passenger facilities and a retail unit, together with staff offices and facilities for the respondent, and the area under their control is to be capable of being fully secured outside whatever hours are worked. The outline plans call for an imaginative use of what is now a virtually empty space. The drawings indicate that a large building will be constructed on the site but that, at street level, buses will be driving in, parking, picking up or discharging passengers and exiting. Above and to the sides of the area required for this activity will be a development, perhaps of up to eight storeys, consisting of mixed retail, residential or hotel use. The applicants proposed a mixed retail and residential development while Deep Drill, the notice party, plan the development of a large hotel.

9 9. This land is very valuable. In consequence, the...