OCS One Complete Solution Ltd v Dublin Airport Authority and Another

JurisdictionIreland
JudgeMr. Justice Barrett
Judgment Date30 May 2014
Neutral Citation[2014] IEHC 306
CourtHigh Court
Date30 May 2014

[2014] IEHC 306

THE HIGH COURT

[No. 177 J R/2014]
[No. 52 COM/2014]
OCS One Complete Solution Ltd v Dublin Airport Authority PLC & Anor
COMMERCIAL
IN THE MATTER OF COUNCIL DIRECTIVE 2004/17/EC
AND IN THE MATTER OF THE EUROPEAN COMMUNITIES (AWARD OF CONTRACTS BY UTILITY UNDERTAKINGS) REGULATIONS 2007 (S.I. 50 OF 2007)
AND IN THE MATTER OF COUNCIL DIRECTIVE 92/13/EEC
AND IN THE MATTER OF THE EUROPEAN COMMUNITIES (AWARD OF CONTRACTS BY UTILITY UNDERTAKINGS) (REVIEW PROCEDURES) REGULATIONS 2010 (S.I.131 OF 2010)

BETWEEN:

OCS ONE COMPLETE SOLUTION LIMITED
APPLICANT

AND

THE DUBLIN AIRPORT AUTHORITY PLC
RESPONDENT

AND

MAYBIN SUPPORT SERVICES (IRELAND) LIMITED
NOTICE PARTY

EUROPEAN COMMUNITIES (AWARD OF CONTRACTS BY UTILITY UNDERTAKINGS) (REVIEW PROCEDURES) REGS 2010 SI 131/2010

EUROPEAN COMMUNITIES (AWARD OF CONTRACTS BY UTILITY UNDERTAKINGS) (REVIEW PROCEDURES) REGS 2010 SI 131/2010 REG 9(1)

EUROPEAN COMMUNITIES ACT 1972 S3

EEC DIR 13/1992

EEC DIR 66/2007

EEC DIR 665/1989

EUROPEAN COMMUNITIES (AWARD OF CONTRACTS BY UTILITY UNDERTAKINGS) (REVIEW PROCEDURES) REGS 2010 SI 131/2010 REG 8(1)

EUROPEAN COMMUNITIES (AWARD OF CONTRACTS BY UTILITY UNDERTAKINGS) (REVIEW PROCEDURES) REGS 2010 SI 131/2010 REG 8(2)

COSTA v ENTE NAZIONALE PER L'ENERGIA ELETTRICA (ENEL) 1964 CMLR 425 1964 ECR 585 (CASE C-6/64)

PIGS & BACON COMMISSION v MCCARRON 1981 IR 451

MELLONI v MINISTERIO FISCAL 2013 QB 1067 2013 3 WLR 717 2013 2 CMLR 43 2013 AER (EC) 475 (CASE C-399/11)

AKLAGAREN v FRANSSON 2013 2 CMLR 46 2013 STC 1905 (CASE C-617/10)

O DOMHNAILL v MERRICK 1984 IR 151

VON COLSON & KAMANN v LAND NORDRHEIN-WESTFAHLEN 1986 2 CMLR 430 1984 ECR 1891

ADENELER & ORS v ELLINIKOS ORGANISMOS GALAKTOS (ELOG) 2007 AER (EC) 82 2006 3 CMLR 30 2006 IRLR 716 2006 ECR I-6057 (CASE C-212/04)

MARLEASING v LA COMMERCIAL INTERNACIONAL DE ALIMENTACION 1992 1 CMLR 305 1993 BCC 421 1990 1 ECR 4135 (CASE C-106/89)

EEC DIR 151/1968

PFEIFFER v DEUTSCHES ROTES KREUZ 2005 IRLR 137 2005 ICR 1307 2004 AER (D) 52 (OCT) 2004 ECR I-8835 (JOINED CASES C-397/01 TO C-403/01)

OFFICIER VAN JUSTITIE v KOLPINGHUIS NIJMEGEN BV 1987 ECR 3969 1989 2 CMLR 18 (CASE C-80/86)

CENTROSTEEL SRL v ADIPOL GMBH 2000 ECR I-6007 2000 3 CMLR 711 2000 CEC 527 (CASE C-456/98)

FACCINI DORI v RECREB SRL 1994 ECR I-3325 1995 1 CMLR 665 1995 AER (EC) 1 (CASE C-91/92)

EL CORTE INGLES SA v BLAZQUEZ RIVERO 1996 ECR I-1281 1996 2 CMLR 507 1996 CEC 561 1997 CCLR 1 (CASE C-192/94)

ALCATEL AUSTRIA AG v BUNDESMINISTERIUM FUR WISSENSCHAFT UND VERKEHR 1999 ECR I-7671 2000 2 TCLR 894 (CASE C-81/98)

IMPACT v MINISTER FOR AGRICULTURE & FOOD 2008 ECR I-2483 2008 2 CMLR 47 2009 AER (EC) 306 2009 CEC 871 2008 IRLR 552 (CASE

PUPINO, IN RE 2005 3 WLR 1102 2006 QB 83 2006 AER (EC) 142 2005 ECR I-5285

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TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION ART 267

ALBATROSS FEEDS LTD v MIN FOR AGRICULTURE & FOOD 2007 1 IR 221 2006/38/8174 2006 IESC 52

EIRCOM LTD v COMMISSION FOR COMMUNICATIONS REGULATIONS 2007 1 IR 1 2006/22/ 493 2006 IEHC 138

TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION ART 4(3)

DELLWAY INVESTMENTS LTD & ORS v NATIONAL ASSET MANAGEMENT AGENCY (NAMA) & ORS 2011 4 IR 1 2011/12/2745 2011 IESC 13

INTERPRETATION ACT 2005

SUSSEX PEERAGE, IN RE 1843-60 AER 55 1844 8 ER 1034 1844 11 CL & FIN 85

RAHILL & GOODE v BRADY 1971 IR 69

AG, PEOPLE v MICHAEL MCGLYNN 1967 IR 232

HEYDON'S CASE, IN RE 1584 76 ER 637 1584 3 CO REP 7A

DPP (IVERS) v MURPHY 1999 1 IR 98

BLASCAOD MOR TEORANTA & ORS v COMMISSIONERS OF PUBLIC WORKS IN IRELAND & ORS 2000 1 IR 1 2000/1/249

CORK CO COUNCIL v WHILLOCK 1993 1 IR 231 1992/10/3239

FRASCATI ESTATES LTD v WALKER 1975 IR 177

NESTOR v MURPHY 1979 IR 326

INTERPRETATION ACT 2005 S5(1)

RAFFERTY v COWLEY 1984 ILRM 350 1983/12/3442

EEC DIR 665/1989 ART 2(3)

EEC DIR 66/2007 ART 1

PARTENAIRE LTD v DEPT OF FINANCE & PERSONNEL 2007 NIQB 100 2008 EU LR 501

AMERICAN CYANAMID CO v ETHICON LTD (NO 1) 1975 1 AER 504 1975 2 WLR 316 1975 AC 396

CAMPUS OIL LTD v MIN INDUSTRY & ENERGY (NO 2) 1983 IR 88 1984 ILRM 85

OKUNADE v MIN FOR JUSTICE & ORS 2012 3 IR 152 2013 1 ILRM 1 2012/37/10891 2012 IESC 49

PUBLIC CONTRACTS (AMDT) REGULATIONS 2009 (UK)

PUBLIC CONTRACTS (AMDT) REGULATIONS 2009 REG 47H(2) (UK)

PUBLIC CONTRACTS (AMDT) REGULATIONS 2009 REG 47H(3) (UK)

INDIGO SERVICES (UK) LTD v COLCHESTER INSTITUTE CORP 2011 EU LR 384 2010 EWHC 3237 (QB)

EXEL EUROPE LTD v UNIVERSITY HOSPITALS COVENTRY & WARWICKSHIRE NHS TRUST 2010 EWHC 3332

METROPOLITAN RESOURCES NORTH WEST LTD v SECRETARY OF STATE FOR THE HOME DEPT 2011 EWHC 1186 (CH)

EUROPEAN COMMUNITIES (AWARD OF CONTRACTS BY UTILITY UNDERTAKINGS) (REVIEW PROCEDURES) REGS 2010 SI 131/2010 REG 9(4)

ALSTOM TRANSPORT v EUROSTAR INTERNATIONAL LTD 2011 EU LR 229 2010 EWHC 2747 (CH) 2010 AER (D) 70 (NOV)

Procurement process - EU law - Remedies Regulations - European Communities Act 1972 - Council Directive 92/13 EEC - Interpretation of legislation - Whether suspension to be lifted - Burden of proof - Test to be applied

Facts The applicant, OCS One Complete Solution Ltd, sought review of a decision of the Dublin Airport Authority to award Maybin Support Services Ltd a contract for certain site services at Dublin Airport subject to a procurement process. OCS brought its application pursuant to the European Communities (Award of Contracts by Utility Undertakings) (Review Procedures) Regulations 2010, otherwise known as the Remedies Regulations. It sought a number of reliefs, particularly an order of the court setting aside and/or varying the award decision pursuant to Regulation 9 (1). OCS maintained the issuing of the proceedings resulted in an automatic suspension which precluded the DAA from entering the contract with Maybin. The DAA sought an order lifting or discharging any applicable suspension of the a) procedure for the award of the contract and b) the implementation of the decision of DAA to award said contract to Maybin. The court was asked to determine 1. Whether the issuing by OCS of its proceedings resulted in an automatic suspension which precluded the DAA from entering into the disputed contract with Maybin? 2. If so, whether it could be lifted on interim application by the DAA? 3. If it could, which party was subject to the burden of proof and what was the appropriate test to apply? 4. What resulted when said test was applied?

Held The Remedies Regulations were introduced pursuant to s.3 of the European Communities Act 1972 to give effect to Council Directive 92/13 EEC. The Regulations strengthen the remedies available to candidates and tenderers who consider that their rights have been infringed in the award of contracts. They improve opportunities for unsuccessful tenderers to challenge unlawful awards. In the case of a contract awarded in serious contravention of the rules, the court has the power to declare the contract ineffective. The court concluded it is clear from Regulation 8 (2) that suspension commences immediately upon a Regulation 8 (1) application being made. The key question was for how long such a suspension should last. Regulation 8(2) provides that where a person makes a Regulation 8(1) application, the contracting entity, here DAA, shall not conclude the contract in dispute until (a) the High Court has determined the matter or (b) the court gives leave to lift any suspension of a procedure or (c) the proceedings are continued or otherwise disposed of. The court concluded the burden falls squarely on the moving party, here DAA, to satisfy the court that the suspension must be lifted. The court considered the correct test was that contained in Regulation 9(4) of the Remedies Regulations which states:

'When considering whether to make an interim or interlocutory order, the court may take into account the probable consequences of interim measures for all interests likely to be harmed, as well as the public interest, and may decide not to make such an order when its negative consequences could exceed its benefits.'

The court considered, pursuant to Regulation 9(4) of the Remedies Regulations, that the DAA had to satisfy the court that the negative consequences of making any interim or interlocutory order as sought would not exceed the benefits of such order. The court concluded the negative consequences of making an order lifting the suspension would exceed the benefits of denying such order.

-The court declined to make an order lifting the suspension.

1

JUDGMENT of Mr. Justice Barrett delivered on the 30th day of May, 2014

Background
2

1. In these proceedings the applicant, OCS One Complete Solution Limited is seeking review of the decision of the respondent, Dublin Airport Authority, to award to the notice party, Maybin Support Services (Ireland) Limited, a contract that was the subject of a procurement process. The contract is for the provision of certain site services at Dublin Airport. OCS has brought its application for review of the award decision pursuant to the European Communities (Award of Contracts by Utility Undertakings) (Review Procedures) Regulations 2010, better known, and referred to in this judgment, as the Remedies Regulations. As part of the application it is seeking a number of reliefs, in particular orders of the court setting aside and/or varying the award decision pursuant to Regulation 9(1) of the Remedies Regulations. OCS has asserted that, pursuant to the Remedies Regulations, the issuing of the within proceedings resulted in an automatic suspension which precludes DAA from entering into the contract that is the subject of the proceedings with Maybin. The DAA has brought the instant application seeking, amongst other matters, an order lifting or discharging any applicable suspension of (a) the procedure for the award of the contract the subject of the proceedings to...

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