OCS One Complete Solution Ltd v Dublin Airport Authority Plc and another

• Jurisdiction: Ireland
• Judge: Mr. Justice Clarke
• Judgment Date: 31 July 2014
• Neutral Citation: [2014] IESC 51
• Docket Number: [Appeal No: 274/14]
• Court: Supreme Court
• Date: 31 July 2014

[2014] IESC 51

THE SUPREME COURT

Clarke J.

Laffoy J.

Dunne J.

[Appeal No: 274/14]

OCS One Complete Solutions Ltd v Dublin Airport Authority PLC & Anor

Between/

OCS One Complete Solutions Limited

Applicant/Respondent

and

Dublin Airport Authority plc

Respondent/Appellant

and

Maybin Support Services (Ireland) Limited t/a Momentum Support

Notice Party

EUROPEAN COMMUNITIES (AWARD OF CONTRACTS BY UTILITY UNDERTAKINGS) (REVIEW PROCEDURES) REGS 2010 ART 8(1)(B)

EUROPEAN COMMUNITIES (AWARD OF CONTRACTS BY UTILITY UNDERTAKINGS) (REVIEW PROCEDURES) REGS 2010 ART 8(2)

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....