This case in the High Court of Northern Ireland involved a challenge by a bidder, Fox Building and Engineering Ltd (Fox), for framework agreements for civil engineering works. Fox alleged that there was abnormally low bidding and that the process lacked fairness and transparency.
On 17 June 2015 in Fox (No 1) the Court ordered early discovery of information (not necessarily full documents) as to the nature and degree of nominal or abnormally low bidding.
The Court gave a judgment one month later in Fox (No 2) on lifting the automatic suspension which, from the initiation of proceedings by Fox, automatically precluded the Department from awarding the framework agreements unless the Court lifted that suspension. The Court applied the American Cyanamid test as being appropriate and compatible with EU law. Weatherup J, determining that there was a serious issue to be tried, held nevertheless that monetary damages would be an adequate remedy and thus granted an order lifting the automatic suspension. The Court was also influenced as to the balance of convenience by what is described as a public interest in public contracts being awarded.
The Northern Ireland High Court (Weatherup J) in judgments in Fox (No 1) on 17 June 2015 and Fox (No 2) on 17 July 2015 considered issues arising from Fox challenging the evaluation of its tenders for framework agreements in lots in respect of civil engineering works in the Northern and Southern areas of Northern Ireland, respectively. Fox was placed 7th in the evaluation in respect of each of the lots and issued proceedings challenging that outcome.
Fox sought early discovery of documents in the procurement process for awarding the contracts. On 17 June 2015, the High Court, although acknowledging that in general such applications ought to be granted sparingly, nevertheless gave judgment ordering some discovery as to information on the nature and extent of "nominal" (or abnormally low) bidding in the process. Fox complained that the Department had not made clear in the tender documentation that responses containing "nominal" prices would be capable of acceptance and accordingly that the process failed to exhibit the necessary level of fairness and transparency.
Abnormally Low Bids
In the Fox (No 1) judgment the Court concluded that there was nothing in either the Directive or the national Regulations to support a submission that a general duty was owed by a contracting...