Procurement Case Update ' Owens V Kildare County Council ' Recent Decisions Of The High Court And Court Of Appeal

• Published date: 18 January 2021
• Subject Matter: Government, Public Sector, Litigation, Mediation & Arbitration, Government Contracts, Procurement & PPP, Trials & Appeals & Compensation
• Law Firm: Philip Lee
• Author: Kerri Crossen and Laura Mullen

Summary:

On 21 December 2020, the Court of Appeal refused an application to stay a procurement process pending the appeal of a High Court decision to refuse the reliefs sought by the applicant in respect of a decision by Kildare County Council ("KCC") to eliminate the applicant from the tender process. The High Court judgment addressed whether KCC fell into manifest error when making the decision to eliminate the applicant from the tender process, whether engagement with other tenderers was discriminatory or unfair to the applicant, whether KCC had failed to provide reasons for their decision as required by the Procurement Regulations¹ and whether failure to provide an external review was contrary to the principle of fair procedures.

High Court Decision - Owens v Kildare County Council [2020] IEHC 435

KCC commenced a tender competition in 2018 for the establishment of a Multi-Party Framework Agreement for Planned Building Maintenance Works (the "Framework Agreement") divided by two lots using the restricted procedure. The applicant was one of the candidates shortlisted to proceed to stage 2 of the process. At stage 2 of the process, each tenderer was required to submit a Quality Assessment Submission, a completed form of tender and schedule and a completed Pricing Document. The applicant submitted a tender but failed to submit a Quality Submission. KCC wrote to the applicant drawing his attention to this failure and to the large number of pricing abnormalities in his Pricing Document, giving him the opportunity to submit a revised Pricing Document (while reserving the right to reject the tender if it was of the view that the rates did not reflect a fair allowance of the notional tender total). The applicant responded making a number of submissions but did not enclose with his reply a Quality Submission or a revised Pricing Document.

On the basis of the absence of a Quality Submission and the pricing abnormalities, the applicant was eliminated from further participation in the competition and KCC notified the applicant of this in a standstill letter in December 2018. The applicant responded to KCC on two occasions stating that he was disputing his elimination, requesting that they reconsider their position and re-instate him to "the shortlist of compliant companies" and that he was "disputing the decision of the employer in accordance with Section 9.4 of the instructions to tenderers".

Section 9.4 of the Instructions to Tenderers ("ITT") for Lot 1 contained a provision that a tenderer, who disputes a decision of the employer (KCC) about whether a tender complies with the ITT, can request that the employer refer their decision to the Sanctioning Authority for external review and recommendation, in this case to the Society of Chartered Surveyors. The employer should then refer the request within seven days with a statement of reasons for their decision, with the tenderer being given a further opportunity to make a further written submission within seven days. Section 9.4 of the ITT also stated that "any review or recommendation by the Sanctioning...