Kerrigan Sheanon Newman Unlimited Company v Sustainable Energy Authorities of Ireland

• Jurisdiction: Ireland
• Judge: Mr. Justice Brian O'Moore
• Judgment Date: 02 October 2025
• Neutral Citation: [2025] IECA 196
• Court: Court of Appeal (Ireland)
• Docket Number: Record Number: 2025/112

In the Matter of Council Directive 2014/24/EU

And in the Matter of the European Union (Award of Public Authority Contracts) Regulations 2016 (S.I. 284 of 2016)

And in the Matter of Council Directive 89/665/EEC as Amended

And in the Matter of the European Communities (Public Authorities Contracts) (Review Procedures) Regulations 2010 (S.I. 130 of 2010) as Amended

Between/

Kerrigan Sheanon Newman Unlimited Company

Applicant/Appellant

and

Sustainable Energy Authority of Ireland

Respondent

and

Abtran Unlimited Company

Notice Party

[2025] IECA 196

Allen J.

O'Moore J.

McDonald J.

Record Number: 2025/112

High Court Record Number: 2024 882 J.R.

THE COURT OF APPEAL

CIVIL

NO REDACTION NEEDED

JUDGMENT of Mr. Justice Brian O'Moore delivered on the 2 ^nd day of October, 2025

1 . In this appeal, which concerns discovery issues, the appellant (“KSN”) argues that the judgment and order of the trial judge, Twomey J., ( [2025] IEHC 65) should be varied in two respects. These are:-

This judgment will therefore be structured under the following headings:-

• (1) KSN should be granted discovery against the respondent (“SEAI”) in respect of category 6(b) of the schedule to the notice of motion seeking discovery; and

• (2) A named executive of KSN, Mr. Justin Travers, should be a member of the confidentiality ring which will have access to confidential material disclosed to KSN on foot of the discovery process.

• (1) Category 6(b) – paragraphs 2 to 31;

• (2) The proposed inclusion of Mr. Travers in the confidentiality ring – paragraphs 32 to 65;

• (3) Conclusions – paragraphs 66 to 70.

Category 6(b)

2 . In order to understand whether or not the trial judge was correct in refusing this category of discovery, one must first appreciate the nature of the claim made in these proceedings.

3 . According to what is described as the amended amended statement of grounds in these public procurement proceedings, KSN is a “construction consulting firm…” which is also “currently an incumbent supplier of managing agent services to [SEAI] in connection with the provisional surveys, building energy ratings, and inspections for domestic and non-domestic properties…”; see paras. 1.2 and 1.4 of the amended amended statement.

4 . The contract under which these services were provided by KSN to SEAI was to expire on the 31 ^st July 2025 (following several extensions). To replace the current contract, in July 2023, SEAI advertised a competition for a contract which would involve (according to para. 3.1 of the amended amended statement): “The provision of managing agent services in connection with the provision of surveys, building energy ratings, and inspections for domestic and non-domestic properties. This includes the provision of a range of evaluation, survey, inspection, BER assessment, audit and related quality assurance and technical services to deliver SEAI schemes in accordance with the objectives set out in the tender documents …” It will be immediately obvious that the range of service to be provided under the new contract is strikingly similar to those provided under the old contract by KSN to SEAI. The term of the new contract was to be 36 months, subject to two optional extensions of one year each, at the discretion of SEAI. The estimated value of the contract was €75M (excluding VAT).

5 . Ultimately, KSN failed to have the new contract awarded to it. The successful tenderer was the notice party (“Abtran”). The current proceedings have been brought, therefore, seeking (at para. 13.3 of the amended amended statement):-

“… In the first instance the set aside of the Decision and the Notification, and insofar as may arise, any contract entered into between the Respondent and the Successful Tenderer.”

Damages are also sought, without prejudice to this primary relief.

6 . The bases upon which these reliefs are sought are numerous. These are:-

While the first of these caught the attention of the trial judge, in a way to which I will return, it is the fifth, sixth and seventh of these that are of the greatest relevance to category 6(b).

• (a) an alleged error in accepting an abnormally low tender;

• (b) an alleged unlawful evaluation on the selection criteria;

• (c) an alleged unlawful evaluation of the award criteria;

• (d) an alleged failure to provide reasons;

• (e) the alleged unlawful evaluation of a non-compliant tender;

• (f) allegedly unequal treatment;

• (g) an alleged lack of transparency;

• (h) a catchall ground relating ( inter alia) to the proper reading of the tender documents, and the exclusion of abnormally low tenders.

7 . Put simply, KSN pleads that, under the rules of the tender competition, tenderers were obliged to comply with the invitation to submit final tenders (“ISFT”), and that the ISFT “did not permit alternative or improved processes for delivering the Core Services in Final Tenders” – see paragraph 12.28(b) of the statement. It is then pleaded – at paragraph 12.28(f) and (g) of the statement – that:-

“(f) [SEAI] accepted and evaluated the [Abtran] tender that comprised an alternative methodology for delivering the Core Services;

(g) Pending further information, including by way of further responses and by way of discovery or disclosure [KSN] cannot know the precise details of the alternative methodology(ies) tendered by [Abtran] but to the extent that the [Abtran] alternative methodology was based on the combination of items outlined in the Pricing Schedule, this was not permitted by the Statement of Requirements and was not provided for in the Pricing Schedule.”

8 . At 12.52 of the current version of the statement, KSN pleads:-

“The acceptance and assessment of an alternative methodology for the delivery of the services tendered by the Successful Tenderer gives rise to a serious concern on the part of [KSN] that it has been treated unfairly, unequally and impermissibly differently to [Abtran] and/or other tenderers. In this regard, [KSN] will rely, in particular (and without limitation), on the pleas already made above.”

9 . Finally, at para. 12.55 of the current version of the statement it is pleaded:-

“In particular (and without limitation):

• (a) It is clear from the pleas above, and from the Affidavits of Ms. O'Brien on behalf of the Respondent and Mr. Fitzgerald on behalf of the Successful Tenderer that the Successful Tenderer tendered an alternative methodology for delivery of the services which was less labour intensive and which was not in compliance with the terms of the ISFT and the Statement of Requirements;

• (b) The onus was on the Respondent to ensure that the criteria and requirements of the ISFT were formulated so as to allow all reasonably well-informed and normally diligent tenderers to interpret them in the same way as in its assessment to apply the criteria and requirements objectively and uniformly to all tenderers;

• (c) Had the Applicant been aware that an alternative methodology for delivery of the services was permitted notwithstanding the requirements of the Statement of Requirements, the Applicant could and would have tendered alternative proposals for the delivery of the services

• (d) In particular, the Applicant would have made proposals with regard to combining certain services. The Applicant currently completes combined post—BERs and Inspections on the Warmer Homes Scheme for a percentage of the homes under that Scheme. Given that the ISFT, the Statement of Requirements, and the Pricing Schedule did not provide for combination of services (unlike the Pricing Schedule in the 2019 tender competition which did provide for combinations), the Applicant did not include any proposals with regard to combining services. The Applicant did not provide for such a methodology because it was not permitted by the tender documents

• (e) The Respondent's failure to formulate the criteria and requirements of the ISFT so as to allow all reasonably well-informed and normally diligent tenderers to interpret them in the same way and to apply the criteria and requirements objectively and uniformly to all tenderers gives rise to a serious concern on the part of the Applicant that the Respondent has failed to act in a transparent manner. In this regard, the Applicant will rely, in particular (and without limitation), on the pleas already made above.

• (f) Pending further information, including by way of further responses and by way of discovery or disclosure, the Applicant cannot know the details of the alternative methodology(ies) tendered by the Successful Tenderer and/or the additional ways in which breaches of the applicable laws have occurred. It reserves the right to advance such additional breaches including if necessary by way of filing an amended Statement Required to Ground and Application for Review of the Award of a Public Contract.”

10 . In the amended amended statement of opposition (at para. 156) it is pleaded:-

“Without prejudice to the generality of the foregoing, it is expressly pleaded that [KSN] has failed to appreciate the extent to which the ISFT allowed flexibility as to the methodologies that could be proposed by tenderers in their final tenders.”

11 . The following relevant paragraphs of the statement of opposition read:-

“157. Tenderers were permitted to propose inter alia that:

• (i) the same person would perform the Survey, Pre-BER Assessment and Post-BER Assessment;

• (ii) the same person would perform the Pre-BER Assessment, Post-BER Assessment and Quantity Check;

• (iii) a Pre-BER Assessment and a Survey or a Post-BER Assessment and an Inspection would be carried out on the same home visit.

158. Tenderers were further permitted to propose methodologies in respect of the provision of the services which were different from the methodologies by which the services had previously been provided or by which the Applicant proposed to provide the services, provided that those...