Killaree Lighting Services Ltd v Mayo County Council
| Jurisdiction | Ireland |
| Judge | Mr. Justice Brian O'Moore |
| Judgment Date | 13 February 2024 |
| Neutral Citation | [2024] IEHC 79 |
| Court | High Court |
| Docket Number | [2020 829 JR] |
Review of the Award of Public Contracts
In the Matter of a Public Procurement Review Application Pursuant to Order 84 a of the RSC
In the Matter of a Review Under the European Communities (Public Authorities Contracts) (Review Procedures) Regulations 2010 As Amended
and
[2024] IEHC 79
[2020 829 JR]
THE HIGH COURT
COMMERCIAL
JUDGMENT of Mr. Justice Brian O'Moore delivered on the 13th day of February 2024
. In these proceedings, the applicant (“Killaree”) seeks the following reliefs:-
“1. An order setting aside the decision of the respondent dated 9 th October 2020 to eliminate the applicant from any further participation in the tender competition for the supply of Maintenance, LED Retrofit, New Works & associated services for public lighting for six Connacht local authorities.
2. A declaration that the contracts concluded between the respondent and the notice party for the supply of Maintenance, LED Retrofit, New Works & associated services for public lighting for six Connacht local authorities on the 27 th of October 2020 is ineffective and/or void.
3. An order suspending the operation of the said contract for 27 th of October 2020.
4. Such interim order and/or interlocutory orders, as appropriate.
5. Further and/or other orders.
6. Damages.
7. Costs”.
. In the event, no interim or interlocutory relief was sought by Killaree against the respondent (“Mayo”). The notice party (“Electric Skyline”) did not participate in the proceedings. A significant amount of affidavits were delivered by both sides; indeed, in his fourth affidavit Mr. Damien Lennon, Killaree's deponent, refers to “the excessive amount of Affidavits which have now been filed….”, while Mr. Lennon's reference is to the evidence delivered on behalf of Mayo, it is also the case that Mr. Lennon swore five affidavits in these proceedings.
. The description of the affidavit evidence as “excessive” is not one with which I would disagree.
. This is not a case in which much was agreed between the parties. At the start of the hearing, I indicated that an issue paper would be helpful once the hearing had concluded. The issue paper could not even be agreed between Killaree and Mayo. The issue paper ultimately provided to me, therefore, had various issues which were marked as being matters which the parties could not agree actually arose in these proceedings. Taking all issues into account, a total of 27 questions were put before the court for decision. This number includes the separate issue as to whether certain of these questions were in fact before the court at all. Ultimately, I have not followed the list of issues in deciding this application. I have structured the judgment broadly by reference to the written submissions of the parties.
. It should be noted that the parties' issue paper excludes the question of damages. It was agreed between the parties that the question of damages would be dealt with separately in the event that it succeeded in establishing any illegality on the part of Mayo which would give rise to an entitlement to damages.
. At a very high level, the facts of the case are these. On the 3 rd of July 2020, Mayo published a contract notice on the e – tenders website. On the 31 st of July 2020, Killaree submitted its tender. On the 14 th of August 2020, Mayo emailed Killaree raising concerns that Killaree's tender included abnormally low amounts. On the 20 th of August 2020, Killaree responded to Mayo. There was further correspondence on the 27 th of August, 4 th of September and 15 th of September 2020.
. Importantly, on the 9 th of October 2020, Mayo wrote to Killaree in the following terms:-
“Dear sirs,
We refer to our letter of 15 th September 2020, your letter of 4 th September and our previous correspondence in relation to the above tender competition.
Upon review of the documentation submitted by [Killaree] and in the exercise of its professional judgment, the Contracting Authority is of the view that the tender submitted by Killaree is abnormally low for the following reasons:
• 66% of the tendered rate submitted in the Pricing Document were priced at €0.01 values;
• The rates priced at €0.01 do not cover the full inclusive value of the relevant works, supplies and services;
• The clarifications and explanations provided by Killaree do not provide sufficient evidence that the tendered rates and prices submitted in its pricing document are not abnormally low or that they reflect a balanced allocation of the national tender total;
• In light of the works, supplies and services required under the Contract, the Contract is not capable of being performed on the basis of the tendered rates.
In accordance with the request for tenders, you are herewith eliminated from any further participation in the tender competition.
Following the identification of the successful tenderer and the observance of the mandatory standstill period, it is anticipated that the name of the winner will be published by means of a contract award notice”.
. The letter was signed by John Maughan, of Mayo, the principal deponent on behalf of the respondent in these proceedings.
. In fact, on the same day, Electric Skyline was notified that it was the successful tenderer. In addition, on the same day, the other unsuccessful tenderer was also notified that it had failed, and that “no formal award of the contract with the successful tenderer would take place before 26 th October 2020” – first affidavit of John Maughan at para. 72.
. The standstill period prescribed in the contractual documentation was 14 days. This was known to Killaree.
. On the 27 th of October 2020, Mayo entered into the contract with Electric Skyline. On the 3 rd of November 2020, a notice was published in Iris Oifigiúil stating the contract had been concluded. On the 6 th of November 2020, these proceedings were issued.
. Both in their written submissions, and in the oral submissions of counsel for Killaree, five broad challenges to the activities of Mayo are outlined. These are, in sequence:-
(a) failure to notify and commence the standstill period;
(b) improper fettering of discretion by Mayo;
(c) misinterpreting the tender documentation;
(d) failure to apply the appropriate test in considering Killaree's explanations;
(e) failure to give adequate or intelligible reasons.
. It might appear more logical to consider issue (a) at the end, as it was the final issue chronologically to arise, I have decided to follow the sequence as put forward by counsel for Killaree, as that is the way in which the argument developed before me. In addition, rather than set out what would inevitably be an extremely lengthy and in large measure irrelevant narrative, I have focused by reference to each of these five topics on the evidence which I consider relevant. I have also refrained from setting out, on a blow-by-blow basis, the evidence and arguments to be found in the many affidavits produced by the parties.
. Clause 3.5.1 of the Request for Tender (“the RFT”) provides that:-
“3.5.1 … no contract can or will be executed or take effect until at least fourteen (14) calendar days after the day on which the unsuccessful Tenderers have been sent the appropriate notice informing them of the result of this Competition (“Standstill Period”) if such notice is sent by electronic means…The preferred bidder will be notified of the decision of the Contracting Authority and of the expiry date of the Standstill Period”.
This mirrors the provisions of Regulation 5(4) of the 2010 Regulations.
. As already noted, on the 14 th August, 2020 Mr. Maughan wrote to Mr. Lennon in respect of the tender that Killaree had submitted. While Mr. Maughan is an officer of Mayo, the public maintenance services contracts were in fact ones which involved the provision of services not only to Mayo to but also to Galway City Council, Galway County Council, Leitrim County Council, Roscommon County Council, and Sligo County Council. Mr. Maughan was therefore writing on behalf of all of these entities when he communicated with Mr. Lennon.
. Mr. Maughan's email raised serious issues about whether or not certain of the rates included in the Killaree tender constituted abnormally low pricing. The email concluded:-
“The evaluation committee has raised concerns about the €0.01 values inserted in approximately 66% of the tendered rates submitted by you.
I am now requesting you, by way of clarification to demonstrate the genuineness of all of your pricing by providing specific details as to how you can offer services, works and goods for the pricing submitted.
A decision will be made based on your response whether to admit or reject your tender.
Can you provide a response to me by 13:00 hours next Wednesday 18 th August.”
. The message of this email was quite plain. Depending on the substance of the response to the email, Killaree's tender could be rejected there and then.
. On the 17 th August, at about 11:20pm, Mr. Lennon emailed Mr. Maughan referring to a telephone conversation that the two men had had earlier that day. Mr. Lennon stated:-
“As discussed over the phone and affording Killaree more time to submit the required information (this is due to staff members been on annual leave) and addressed queries in your email.”
On the 20 th August, Mr. Maughan replied:-
“Damien
Good evening. I granted you an extra day to submit your response to my email hereunder. That response was supposed to be with me today by 1pm. Can you reply to me with your response by close of business this evening.”
. At around 11:50pm that day, some seven hours after Mr. Maughan's email, Mr. Lennon replied:-
“Hi John,
I hope you are keeping well....
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