Owens v Kildare County Council

• Jurisdiction: Ireland
• Judge: Mr. Justice Quinn
• Judgment Date: 04 September 2020
• Neutral Citation: [2020] IEHC 435
• Court: High Court
• Docket Number: 2019/71 JR
• Date: 04 September 2020

IN THE MATTER OF COUNCIL DIRECTIVE 89/665/EEC, AS AMENDED BY DIRECTIVE 2007/66/EC

AND

IN THE MATTER OF THE EUROPEAN COMMUNITIES (AWARD OF PUBLIC AUTHORITIES’ CONTRACTS) REGULATIONS 2006 (S.I. NO 392 of 2006)

AND

IN THE MATTER OF THE EUROPEAN COMMUNITIES (PUBLIC AUTHORITIES’ CONTRACTS) (REVIEW PROCEDURES) REGULATIONS, 2010 (S.I. NO 130 of 2010)

AND

IN THE MATTER OF THE EUROPEAN UNION (AWARD OF PUBLIC AUTHORITY CONTRACTS) REGULATIONS 2016

AND

IN THE MATTER OF ORDER 84A OF THE RULES OF THE SUPERIOR COURTS 1986

BETWEEN

ROBERT OWENS

APPLICANT

AND

KILDARE COUNTY COUNCIL

RESPONDENT

[2020] IEHC 435

Quinn

2019/71 JR

THE HIGH COURT

Judicial review – European Union (Award of Public Authority Contracts) Regulations 2016 – Right to fair procedures – Applicant seeking orders by way of judicial review quashing the decision of the respondent – Whether the decision made was ultra vires the decision-making powers of the respondent

Facts: The applicant, Mr Owens, applied to the High Court seeking orders by way of judicial review quashing the decision of the respondent, Kildare County Council, to eliminate him from any further participation in a tender for the establishment of a Multi-Party Framework Agreement for Planned Building Maintenance Works for County Kildare. The applicant sought declarations that the decision made was: (a) ultra vires the decision-making powers of the respondent; (b) arrived at on foot of a decision-making process which was flawed, unfair, unequal, discriminatory, arbitrary and otherwise not in accordance with natural and constitutional justice and the applicant’s right to fair procedures; and (c) that the decision breaches the respondent’s duty to give full and proper reasons as required by the European Union (Award of Public Authority Contracts) Regulations 2016 (S.I. No. 284/2016) (the Procurement Regulations). The applicant also sought declarations that any steps taken after his elimination are void and that any contract concluded for the Framework Agreement is ineffective. He also sought an injunction restraining the respondent from taking any further steps in the decision-making process for that Framework Agreement. The respondent opposed the claims and asserted that it acted at all times in accordance with the Procurement Regulations and other applicable regulations and denied that the decision-making process was in any manner flawed, unfair, unequal, arbitrary or otherwise than in accordance with natural and constitutional justice or the applicant’s right to fair procedures.

Held by Quinn J that the decision to eliminate the applicant from further participation in the competition was within the discretion to exclude him conferred on the respondent by the Instructions to Tenderers (ITT). Quinn J found that the test to be applied to this decision was whether the respondent fell into manifest error (per Fennelly J in SIAC v Mayo County Council [2002] 3 I.R. 148). Quinn J noted that by the contents of the applicant email of 20 November, 2018, the respondent was presented with a refusal by the applicant to address the identified deficiencies by submitting a Quality Submission and for Lot 2 a revised Pricing Document; faced with this refusal, the decision cannot be characterised as a manifest error. Quinn J held that the manner in which the respondent exercised its discretion in making this decision did not constitute a manifest error. Quinn J held that the engagement by the respondent with those not eliminated was not discriminatory or unfair to the applicant. Quinn J held that the principles of fairness and equality in this process do not require that tenders be treated identically. Quinn J found that the absence of a Quality Submission coupled with 439 items deemed to have been priced abnormally high or low distinguished the applicant so radically that the engagement with the other tenderers by Mr Flynn from 27 November, 2018 onwards did not constitute unequal or unfair discrimination against the applicant. Quinn J held that the respondent’s letter of 14 December, 2018, clearly stated the reasons for the elimination of the applicant as required by the Procurement Regulations. Quinn J held that in all the circumstances the applicant had not demonstrated that he suffered prejudice by reason of the respondent’s failure to provide to the applicant the facility of an external review to which he was entitled under s. 9.4 of the ITT in respect of Lot 1. Quinn J held that it would be unjust to make an order of certiorari in respect of the decisions of the respondent by reason only of this failure.

Quinn J held that the reliefs sought would be refused.

Reliefs refused.

JUDGMENT of Mr. Justice Quinn delivered on the 4th day of September, 2020

1 The applicant seeks orders by way of judicial review quashing the decision of the respondent to eliminate him from any further participation in a tender for the establishment of a Multi-Party Framework Agreement for Planned Building Maintenance Works for County Kildare, (the “Framework Agreement”).

2 The applicant seeks declarations that the decision made was:-

(a) ultra vires the decision-making powers of the respondent;

(b) arrived at on foot of a decision-making process which was flawed, unfair, unequal, discriminatory, arbitrary and otherwise not in accordance with natural and constitutional justice and the applicant's right to fair procedures; and

(c) that the decision breaches the respondent's duty to give full and proper reasons as required by European Union (Award of Public Authority Contracts) Regulation, 2016 (S.I. No. 284/2016), (the “Procurement Regulations”).

3 The applicant also seeks declarations that any steps taken after his elimination are void and that any contract concluded for the Framework Agreement is ineffective. He also seeks an injunction restraining the respondent from taking any further steps in the decision-making process for that Framework Agreement.

4 The respondent opposes the claims and asserts that it acted at all times in accordance with the Procurement Regulations and other applicable regulations and denies that the decision-making process was in any manner flawed, unfair, unequal, arbitrary or otherwise than in accordance with natural and constitutional justice or the applicant's right to fair procedures.

The Tender

5 On 2 May, 2018, the respondent announced the commencement of a tender process for the establishment of the Framework Agreement. The purpose of the Framework Agreement was to allow the respondent to procure quick turnaround type works and mini tenders from prequalified contractors. The works comprised refurbishment and adoption of houses, both vacant and occupied, to bring them up to current regulations and standards. Two separate “Lots” were being tendered.

6 It was envisaged that Lot 1, which would relate principally to minor works, would involve the appointment of a panel of twelve contractors for use in mini-tendering competitions.

7 It was envisaged that Lot 2, referred to as the panel for “quick turnaround works”, would result in the appointment of two preferred contractors, one for Kildare North and one for Kildare South and a panel of a further eight “reserved bidders” to back up the preferred contractors whenever they were unavailable.

8 The Framework Agreement was planned to last for a period of twelve months, with the option for the respondent to extend it for up to three additional twelve month periods. The total spend under the framework was set at a maximum of €10 million over the lifetime of the framework.

9 The process was undertaken by a two stage restricted tender. Initially, parties were requested to make submissions of interest within a four-week period. Such submissions were required to be supported by a suitability assessment questionnaire with supplements and appendices. On the basis of these materials, a selected number of parties were invited to participate in stage 2.

10 On 28 August, 2018, the respondent notified those parties which it had identified as eligible to move to stage 2 and invited them to submit tenders by Tuesday, 2 October, 2018. The deadline was later extended to 9 October, 2018.

11 The applicant was selected to progress to stage 2 and so notified.

12 The deadline for pre-tendering enquiries was Tuesday, 18 September, 2018.

13 In respect of each of the Lots, there was issued a separate Instructions to Tenderers, referred to in this judgment as an “ITT”.

14 The ITT provided at s. 4.2 that each tender must include all of the documents listed in an appendix which were as follows:-

(1) Completed form of tender and schedule;

(2) Completed Pricing Document; and

(3) Quality Assessment Submission together with all necessary backup and supporting information and certification (referred to as a “Quality Submission”).

15 The form of the Pricing Document was specified at volume C of the ITT, and there was issued separately by the respondent a “Works Requirement Document” prescribing the form in which the Quality Submission would be made.

16 The applicant and others submitted their tenders before the extended deadline of 9 October, 2018.

17 On 12 November, 2018, the respondent wrote to the applicant seeking clarification on two items as follows:-

(1) It stated that no Quality Submission had accompanied the tender;

(2) That the respondent's Tender Assessment Panel (the “TAP”) had advised that the Lot 2 pricing document did not adhere to the tender requirements, and that the TAP had deemed the tendered amounts to be “both abnormally high and low” and requested that the applicant submit a revised Pricing Document.

18 In this letter, the respondent stated that it reserved the right to reject the tender if it was of the view that the rates do not reflect a fair allowance of the notional tender total.

19 The respondent also indicated that it required a reply by 12 noon on 20 November, 2018. It...