Transcore, LP v The National Roads Authority, Operating Under The Name of Transport Infrastructure Ireland

• Jurisdiction: Ireland
• Judge: Mr. Justice David Barniville
• Judgment Date: 17 October 2018
• Neutral Citation: [2018] IEHC 569
• Court: High Court
• Docket Number: [2017 No. 282 J.R.]
• Date: 17 October 2018

IN THE MATTER OF COUNCIL DIRECTIVE 2004/18/EC AND IN THE MATTER OF THE EUROPEAN COMMUNITIES (AWARD OF PUBLIC AUTHORITIES" CONTRACTS) REGULATIONS 2006 (S.I. 329 OF 2006) AND IN THE MATTER OF COUNCIL DIRECTIVE 89/665/EEC (AS AMENDED) AND IN THE MATTER OF THE EUROPEAN COMMUNITIES (PUBLIC AUTHORITIES" CONTRACTS) (REVIEW PROCEDURES) REGULATIONS 2010 (S.I. 130 OF 2010) (AS AMENDED BY S.I. 192 OF 2015)

BETWEEN

TRANSCORE, LP

APPLICANT

AND

THE NATIONAL ROADS AUTHORITY, OPERATING UNDER THE NAME OF TRANSPORT INFRASTRUCTURE IRELAND

RESPONDENT

AND

ABTRAN UNLIMITED, VINCI CONCESSIONS SAS

AND

VINCI HIGHWAYS SAS (TURAS)

NOTICE PARTY

[2018] IEHC 569

[2017 No. 282 J.R.]

THE HIGH COURT

COMMERCIAL

Public procurement – Interpretation – Tender documentation – Applicant seeking to challenge the respondent's decision to award to another bidder a tolling operations contract – Whether the interpretation of the tender documentation put forward, relied upon and applied by the respondent was correct

Facts: The applicant, Transcore, LP, challenged on public procurement grounds the decision made by the respondent, the National Roads Authority, in February 2017 to award to another bidder, Turas (a consortium consisting of a number of entities), a new tolling operations contract for the M50 motorway and any other tolling points which the Authority might introduce or operate in future on the road network in Ireland. It was common case that the essential question was a net issue of interpretation of the quality scoring matrix in respect of one of the criteria for evaluating one of three delivery plans required to be prepared and presented by each bidder as part of a quality submission required to be made with its tender submission. The applicant challenged the Authority's interpretation and application of that quality scoring matrix in respect of one of the marks given by the Authority to Turas in respect of one of the criteria by which the particular delivery plan was required to be evaluated. The Authority awarded Turas a mark of 9 out of 10 for that criterion (Criteria B) whereas the applicant claimed that the Authority misapplied or misinterpreted the scoring matrix and should not have awarded Turas more than 8 marks in respect of that criterion. The applicant claimed that had the Authority awarded Turas 8 marks out of 10 rather than 9, the applicant would have achieved a higher overall score than Turas and would have been the successful bidder in the competition.

Held by the High Court (Barniville J) that, having reflected extensively on the issue of interpretation to be determined, it came to the conclusion that the interpretation of the tender documentation put forward, relied upon and applied by the Authority was clearly correct.

Barniville J held that, in those circumstances, he would refuse the applicant's application and dismiss its claim.

Application refused.

JUDGMENT of Mr. Justice David Barniville delivered on the 17th day of October, 2018

INTRODUCTION

1 This case involves a challenge by the applicant, Transcore, LP, on public procurement grounds, to the decision made by the respondent, the National Roads Authority, now known as Transport Infrastructure Ireland (the 'Authority'), in February 2017 to award to another bidder, Turas (a consortium consisting of a number of entities) ('Turas'), a new tolling operations contract for the M50 motorway and any other tolling points which the Authority might introduce or operate in future on the road network in Ireland.

2 It is not the only such case arising from that decision and from the procurement process run by the Authority. The incumbent, Emovis Operations Ireland Ltd. ('Emovis'), which was also unsuccessful in the procurement process, has itself commenced proceedings which are currently before the High Court. They are not as advanced as these proceedings and, as I understand it, are still at the discovery stage ( Emovis Operations Ireland Limited v. National Roads Authority & ors [2018] IEHC 362 (Haughton J.)). As a result of an undertaking apparently given by Emovis in those proceedings, the automatic suspension on the award of the contract has continued. No application to lift it was made in these proceedings. The existing contract, having been extended, will expire in March 2019.

3 Many issues of fact and law were ventilated by the parties in the course of the exchange of affidavits and written submissions and in the oral submissions at the hearing. However, it is now common case that the essential question which I have to decide in these proceedings is a net issue of interpretation of the quality scoring matrix in respect of one of the criteria for evaluating one of three delivery plans required to be prepared and presented by each bidder as part of a quality submission required to be made with its tender submission.

4 The applicant has challenged the Authority's interpretation and application of that quality scoring matrix in respect of one of the marks given by the Authority to Turas in respect of one of the criteria by which the particular delivery plan was required to be evaluated. The Authority awarded Turas a mark of 9 out of 10 for that criterion (Criteria B) whereas the applicant claims that the Authority misapplied or misinterpreted the scoring matrix and should not have awarded Turas more than 8 marks in respect of that criterion.

5 As we shall see, the difference of one mark could have made the difference between winning and losing the competition for the applicant (and would have done unless it was necessary to revise other marks awarded as a result of a judgment in favour of the applicant in this case). The applicant claims that had the Authority awarded Turas 8 marks out of 10 rather than 9, the applicant would have achieved a higher overall score than Turas and would have been the successful bidder in the competition.

6 While ultimately refining itself to a net issue of interpretation (and consequent application) of the scoring matrix, the apparent simplicity of the issue of interpretation is somewhat illusory due in no small way to the exemplary quality of the advocacy, both written and oral, of the legal representatives of the three parties in the case which, while extremely impressive to hear, has made my task in determining the issue in the case more difficult than perhaps it ought to have been. I say this as, having reflected extensively on the issue of interpretation to be determined, I have come to the conclusion that the interpretation of the tender documentation put forward and relied upon and applied by the Authority is clearly correct and that, in those circumstances, I must refuse the applicant's application and dismiss its claim.

SCHEME OF JUDGMENT

7 I adopt the following scheme in this judgment. It is necessary at the outset to say something about the parties and then to outline in some detail the background to the procurement competition and the process for the award of contract at issue. I will then consider the correspondence which preceded the commencement of the proceedings before turning to consider the respective contentions of the parties in the proceedings. After that I will address the legal and factual issues which require to be determined in order to resolve the essential issue of interpretation. I will then summarise my conclusions.

THE PARTIES

(a) The Applicant

8 The applicant is a company which is incorporated in Delaware, USA, and has its registered office in Nashville, Tennessee, USA. It is a wholly-owned subsidiary of Roper Technologies, Inc., an NYSE-traded S&P 500 corporation with annualised revenues in excess of €3.54 billion in 2016. The applicant specializes in providing innovative toll system technology and operations to government agencies and private firms around the world. The applicant has transportation installations worldwide and develops and maintains almost half of all toll lanes in the United States. The evidence establishes that the applicant identified the tolling operations contract at issue in this case as representing a significant business opportunity giving it good potential to expand into the European market, with Ireland serving as the applicant's European base of operation and its headquarters.

(b) The Authority

9 The Authority is a statutory body which was established in 1993 and exercises powers pursuant to the Roads Acts 1993 to 2015. It has a general duty to secure the provision of a safe and efficient network of national roads in Ireland. It has overall responsibility for the planning and supervision of works for the construction and maintenance of national roads and other functions assigned to it under the legislation. In particular, the Authority has statutory power under s. 63 of the Roads Act 1993 (as amended) to enter into an agreement with another person for the operation and management by that person of roads for or with the Authority (including the provision, supervision and operation of a system of tolls and their collection in respect of the use of such roads).

10 The Roads Acts set out the provisions for the enforcement procedures and access to records required for the operation of a free-flow (or barrier-free) toll road such as the M50 in Dublin. The legislation also provides a statutory basis for the making of a draft toll scheme in respect of the M50 between Junctions 6 and 7 of that motorway.

11 The Authority merged with the Railway Procurement Agency pursuant to the Roads Act 2015 with effect from 1st August, 2015. The merged entity operates under the name Transport Infrastructure Ireland. The Authority (operating under that name) is the relevant awarding authority for the contract at issue in these proceedings.

(c) Turas

12 Turas is a notice party to the proceedings. It has fully participated in the proceedings by the delivery of a statement of opposition and affidavit evidence and by making written and oral...