Newbridge Tyre and Battery Company Ltd T/A Fleet Service Centre v Commissioner of an Garda Síochána

JurisdictionIreland
JudgeMs. Justice Baker
Judgment Date21 June 2018
Neutral Citation[2018] IEHC 365
CourtHigh Court
Docket Number[2017 No. 964 JR]
Date21 June 2018

[2018] IEHC 365

THE HIGH COURT

JUDICIAL REVIEW

Baker J.

[2017 No. 964 JR]

BETWEEN
NEWBRIDGE TYRE AND BATTERY CO LIMITED T/A FLEET SERVICE CENTRE
APPLICANT
AND
COMMISSIONER OF AN GARDA SÍOCHÁNA
RESPONDENT
AND
CORCORAN AUTOBODY WORKS LIMITED
NOTICE PARTY

Judicial review – Preliminary objection – Proceedings out of time – Applicant seeking judicial review – Whether the proceedings were out of time

Facts: The respondent, An Garda Síochána, ran a competition for the provision of towing and garaging services of vehicles recovered, seized, or retained by An Garda Síochána following traffic collisions, or for the purpose of the investigation of crime. The service was operated by the applicant, Newbridge Tyre and Battery Co. Ltd, which was unsuccessful in the competition. The contract was awarded to the notice party, Corcoran Autobody Works Ltd. The applicant applied to the High Court for judicial review. The preliminary objection of the respondent was that the proceedings were out of time under Regulation 7(2) of the European Communities (Public Authorities Contracts) Review Procedures (Amendment) Regulations 2015 S.I. 192 of 2015 (the Remedies Regulations) not having been brought within 30 calendar days after the applicant was notified of the decision.

Held by Baker J that time had not run for the purposes of the test in Regulation 7(2) of the Remedies Regulations until a letter of 23 November 2017, and that the application was not out of time.

Baker J held that the relief sought in the motion that the proceedings be dismissed as being out of time would be refused. For those reasons Baker J did not propose considering the application of Newbridge to amend its statement of grounds to add a prayer for an extension of time to bring the application for review.

Relief refused.

JUDGMENT of Ms. Justice Baker delivered on the 21st day of June, 2018
1

These proceedings arise from a competition run by An Garda Síochána for the provision of towing and garaging services of vehicles recovered, seized, or retained by An Garda Síochána following traffic collisions, or for the purpose of the investigation of crime.

2

The service is currently operated by the applicant, Newbridge Tyre and Battery Co. Ltd. ('Newbridge'), which was unsuccessful in the competition, and has commenced proceedings for judicial review.

3

The competition being one for the procurement of services by a public authority is governed by the European Union (Award of Public Authority Contracts) Regulations 2016 ( S.I. 284/2016) giving effect to Directive 2014/24/EU of 26 February 2014 on Public Procurement and repealing Directive 2004/18/EC.

4

The relevant provisions of Council Directive 89/665/EEC 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 as amended by Directive 2007/66/EC, ('the Remedies Directive') were transposed into Irish law by the European Communities (Public Authorities Contracts) Review Procedures Regulations 2010 S.I. No. 130 of 2010 and subsequently amended by S.I. 192 of 2015 ('the Remedies Regulations').

5

This judgment is directed to the preliminary objection of the respondent that the proceedings are out of time under Regulation 7(2) of the Remedies Regulations not having been brought within 30 calendar days after the applicant was notified of the decision.

6

The contract was awarded to Corcoran Autobody Works Ltd. ('Corcoran'), the notice party, which appeared at the hearing of this motion and supports the application.

Relevant Dates
7

The request for tender ('RFT'), published on 22 June 2017, on the 'eTenders Website', provided for a deadline for submission of tenders of 10 August 2017. Three completed tenders were received.

8

By letter dated 27 October 2017, the respondent notified all three tenderers of the outcome of the process and identified Corcoran as the preferred bidder, as it had made the most economically advantageous bid. That letter provided for a standstill of 16 days.

9

On 27 October 2017, solicitors for the applicant, Messrs. McDowell Purcell, wrote to the respondent ('the Contracting Authority') saying that Newbridge was 'extremely disappointed' and raising 'serious questions' regarding the compliance of Corcoran with the requirements of the RFT, its own planning permission, and with relevant Waste Regulations. It was positively asserted that Corcoran did not have the benefit of planning permission or the necessary waste permits to provide the services. The letter requested specific information and documentation, including details regarding the location of the Corcoran primary site and planning permission registration numbers.

10

The Contracting Authority replied by letter of 8 November 2017 and gave detailed answers to each of the eight questions raised. A further letter of 14 November 2017 dealt with a perceived difficulty with Corcoran's certification of registration under the Waste Management Act 1996, as clause 2.6 thereof provided that the site should operate only between the hours of 08.00 and 18.00 Monday to Friday, and 08.00 to 14.00 on Saturdays, but said that Kildare County Council Environmental Section had clarified that the restrictive opening times were a 'clerical error' and that the certificate was to be rectified to provide for operations on a 24/7 basis.

11

On 16 November 2017, Newbridge raised further queries regarding the certificate of registration and the storage facility for end-of-life vehicles, pointing out that the other facility intended by Corcoran to operate as a secondary facility had limited capacity and rejecting the contention that clause 2.6 of the certificate of registration contained a 'clerical error or oversight' that the imposition of a limitation on the hours of operation was a 'standard condition', one 'routinely imposed' by Kildare County Council.

12

The point was also made that any change in the condition would involve a rescission of the certificate of registration submitted by Corcoran as part of its tender. The writer noted that clause 4.1 of the RFT requires that the competitor 'hold the necessary permits for the activities to be carried out under the tender' and asserted that the preferred bidder did not met the requirements at either its primary or secondary facility.

13

A reply was sent on 23 November 2017 which acknowledged that the certificate of registration furnished by Corcoran did limit the number of crashed and immobilised cars that could be stored on the site to six, and that the letter of 14 November had contained an error. However, the writer rejected the proposition advanced by Newbridge regarding the amendment of the 'clerical error'. It was also pointed out that clauses 4.1 and 4.2 of the RFT required that a tenderer have 'for the duration of the contract' and 'prior to the commencement and throughout the contract period' the necessary permissions and permits etc. and that Corcoran had satisfied the Contracting Authority that it would have the necessary permits in place for the duration of the contract.

14

An immediate response was sent to that letter on the following day, where issues of the range and scope of activities permitted on the primary site was raised again, further argument made regarding the appropriateness of correcting the 'clerical error', and in which information and documentation was requested regarding the consultation between Kildare County Council and the Contracting Authority.

15

The reply letter of 30 November 2017 declined to furnish correspondence between the Contracting Authority and Kildare County Council, and dealt with the nature and scope of the activity permitted. Nothing new was added in that letter, save that the standstill period which had been agreed in earlier correspondences was to thereafter be treated as having expired.

16

The second last letter in the chain was a letter of 1 December 2017 where robust assertions regarding the engagement between the Contracting Authority and Kildare County Council where made, and where it was firmly stated that the applicant disagreed that the requirement of the RFT or the Procurement Regulations had been met.

17

The final letter in the sequence was a letter of 6 December 2017 from the Contracting Authority, which pointed to the 30 calendar day time limit contained in Regulation 7(2) of the Remedies Regulation, and referred to a number of relevant authorities. The writer expressed the view that the time limit had 'clearly expired'.

18

The application for leave to bring judicial review issued the following day, on 8 December 2017.

19

Thereafter, on 7 March 2018, the respondent sought an order pursuant to O. 63A, r. 4(1) of the Rules of the Superior Courts ('RSC') that the proceedings be admitted into the Commercial List of the High Court, and that order was refused by McGovern J. on 12 March 2018. The matter was then adjourned to the Judicial Review List of the High Court where, on 13 March 2018, Meenan J. directed the application to dismiss the proceedings be heard as primary issue, and that Newbridge be given leave to issue a motion of notice to amend its statement of grounds to seek a necessary extension of time to bring the proceedings.

20

The preliminary objection was then heard by me in the Judicial Review List in Kilkenny on 11 May 2018.

The Remedies Regulations
21

Regulation 7 of the Remedies Regulations makes provision for the time limits for the bringing of applications under the Remedies Directive and Regulation 7(2) provides for a 30 day limit:

'An application [...] 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.'

22

The time limits are not absolute, and Regulation 10(2) permits the making of rules of court by which court can...

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