Forum Connemara Ltd v Galway County Local Community Development Committee

• Jurisdiction: Ireland
• Judge: Ms. Justice Irvine
• Judgment Date: 26 February 2016
• Neutral Citation: [2016] IECA 59
• Court: Court of Appeal (Ireland)
• Docket Number: Appeal No.: 2015/351
• Date: 26 February 2016

[2016] IECA 59

THE COURT OF APPEAL

Irvine J.

Appeal No.: 2015/351

Ryan P.

Irvine J.

Hogan J.

Forum Connemara Limited

Respondent/Applicant

- and -

Galway County Local Community Development Committee

Appellant/Respondent

Extension of Time – Order 84A of the Rule of the Superior Courts 1986 – Regulation 7 of the European Communities (Public Authorities? Contracts) (Review Procedures) Regulations 2010

Facts: The court considered the circumstances in which it can exercise its discretion to extend time for an application to be made to review the award of a public contract outside the time limit specified by regulation. Order 84A of the Rule of the Superior Courts 1986, as amended, permits an application seeking to challenge a decision to be made in accordance with the relevant time period in Regulation 7 of the European Communities (Public Authorities? Contracts) (Review Procedures) Regulations 2010. The regulation requires proceedings under O.84A to be made within 30 days after the applicant was notified of the decision or knew or ought to have known of the infringement alleged in the application. Under Order. 84A r. 4(2) the court is allowed to extend time in respect of the bringing of an application to challenge such a decision where there is good reason. The High Court decided that the respondent had demonstrated good reasons why it should be granted an extension of time to challenge a decision made by the appellant. In this appeal Galway County LCDC contended that no good reason existed for the Court to lawfully invoke provisions of O. 84A, r 4(2). Galway County LCDC sought to have the order set aside and the proceedings dismissed.

Held by Irvine J: The trial judge had erred in principle and in law when he decided there were good reasons within the meaning of o. 84A to extend time to permit the Respondent/Applicant to challenge the decision. Not only did the Respondent/Applicant not institute proceedings within the prescribed time limit but it approved the decision which it maintained was invalid and did so for its own commercial benefit. To extend time in the circumstances of this case would result in a gross impairment of the effectiveness of the implementation of the Community Directives on the award of public contracts. There were no good reasons entitling the trial judge to grant the reliefs sought. The court allowed the appeal.

Judgment of Ms. Justice Irvine delivered on the 26th day of February 2016

1 The present appeal requires this Court to examine the circumstances in which a court may exercise its discretion and extend time so as to permit an application to be made to review the award of a public contract outside the time limit specified by regulation.

2 Order 84A of the Rules of the Superior Courts 1986, as amended, provides that an application seeking to challenge a decision which comes within the ambit of that Order shall be made in accordance with the relevant time period contained in Regulation 7 of the European Communities (Public Authorities' Contracts) (Review Procedures) Regulations 2010. That regulation requires that proceedings under O. 84A ?shall be made within 30 calendar days after the applicant was notified of the decision, or knew or ought to have known of the infringement alleged in the application?.

3 Order 84A, r. 4(2) permits the court to extend the time in respect of the bringing of an application to challenge such a decision ?where the Court considers there is good reason to do so?.

4 In a decision made in the High Court on 23rd June, 2015, Barrett J., concluded that the respondent, Forum Connemara Limited (?Forum Connemara?) had demonstrated good reasons why it should be granted an extension of time to challenge a decision made by the appellant, Galway County Local Community Development Committee (?Galway County LCDC?) on 30th September, 2014.

5 In this appeal Galway County LCDC maintains that there were no good reasons such that the Court could lawfully have invoked the provisions of O. 84A, r. 4(2). Thus, Galway County LCDC seeks to set aside the aforementioned order with the consequence that the proceedings would then be dismissed.

Factual background

6 Galway County LCDC was established in June, 2014. Under the Local Government Act 2001 it is charged with, inter alia, co-ordinating, managing and overseeing the implementation of local and community development programmes that have been approved either by the relevant local authority or by agreement between the LCDC and a relevant public authority, such as a Government department or State Agency. One such programme is the Social Inclusion and Community Activation Programme (?SICAP?) which is aimed at tackling poverty and social exclusion in disadvantaged communities. That programme is managed and administered by local community development committees which direct funding to various programme implementers or service providers.

7 At a meeting held on 30th September, 2014, Galway County LCDC made a decision that there should be only one service provider or programme implementer for SICAP for the entire County of Galway. Previously, the funding for SICAP had been implemented by two separate programme implementers and each was in control of one of two areas or lots. Forum Connemara and Galway Rural Development Company Limited were the relevant service providers.

8 The award of the contract for programme implementer of SICAP was a two stage procurement process. The result of the stage one phase led to five entities, including Forum Connemara, being deemed capable of delivering SICAP in County Galway and each of these were invited to participate in Stage two of the process.

9 As I have just stated, on 30th September, 2014, Galway LCDC decided that there would be one programme implementer for SICAP for the whole of the County of Galway. It is this resolution which Forum Connemara seeks to challenge in the within proceedings, its fundamental objection being the manner in which the decision that there would only be one programme implementer and one lot for the whole County of Galway was arrived at.

10 An invitation to tender for the provision of programme implementation services for SICAP was issued to the five companies selected under the Stage one procedure. The tender documentation issued on 20th October, 2014. The same described clearly that the contracting authority, Galway County LCDC, required the delivery of services in respect of one single lot, namely Lot 27, the said area being in respect of the whole of the County of Galway as identified on the map contained in the tender documentation.

11 The budget for the SICAP for Galway County which would come under the control of the successful candidate was to be ?1.2m or thereabouts for the period spanning April to December, 2015.

12 Forum Connemara submitted a tender referable to what it described in its tender documents as Galway County (Lot 27) comprising an area of 5,796 kms ² with a population of 175,124 as of 2011. Sometime later, Galway Rural Development Company Limited was awarded the contract and by letter dated 2nd March, 2015, Forum Connemara was advised that it had been unsuccessful in its tender.

13 It is now accepted, although initially disputed by Forum Connemara, that the decisions of 30th September, 2014, and 2nd March, 2015, concern a contract which falls within the scope of the Public Works Contracts, Public Supply Contracts and Public Services Contracts Directive ( Directive 2004/18/EC) and the Review Procedures Directive ( Directive 2007/66/EC as amended) as implemented by S.I. 329/2006 European Communities (Award of Public Authorities' Contracts) Regulations 2006 and S.I. 130/2010 European Communities (Public Authorities' Contract) (Review Procedures) Regulations 2010.

14 At the heart of these proceedings is the allegation made by Forum Connemara that on 30th September, 2014, there was a pre planned conspiracy whereby the Chief Officer and other agents of the respondent forced a number of Committee members, including Forum Connemara's representative, to absent themselves from a meeting which was about to consider a proposal to have a single SICAP provider for the entire County of Galway. Forum Connemara maintains that the conflicts of interest policy, which was used to exclude those who had a potential interest in SICAP from the meeting, had the consequence that the persons who made the decision had no knowledge as to the likely effect it would have and wrongfully silenced key stakeholders under the guise of transparency, openness and the need to avoid a conflict of interests. Thus, it maintains that the procedure adopted was unfair and perverse and the resolution thereby rendered invalid.

Procedural background

15 On 23rd March, 2015, Forum Connemara was granted leave to apply for judicial review seeking an order of certiorari quashing the decision of Galway County LCDC made on 30th September, 2014, that there should be one service provider or programme implementer for SICAP for the entire Galway County area. It was also given leave to seek have the decision of 2nd March, 2015, to award the contract to Galway Rural Development Company Limited quashed. An order was also made staying the decision of 2nd March, 2015, until the determination of the proceedings. In response Galway County LCDC brought an application to strike out the proceedings on the basis that the claim was one to which the provisions of O. 84A applied and as such were, at that time, improperly constituted under O. 84. It also sought an order striking out the applicant's challenge to the resolution of 30th September, 2014, to the effect that the implementation of SICAP should proceed by way of one lot, on the grounds of the delay on the part of Forum Connemara in seeking to challenge that decision.

Judgment of Barrett J. (High Court)

16 Barrett J. came to the...