If your business is involved in tendering for public sector contracts, then you may, on occasion, have received a 'letter of regret' from a public body indicating that the tender was not successful. However, can you challenge that decision? Recent government regulations dealing with public authority contracts require that 'in awarding a public contract, a contracting authority shall a) treat all economic operators equally and without discrimination and b) act in a transparent way'.

A recent Supreme Court decision in the case of Advanced Totes Limited v Bord Na gCon and Autotote Worldwide Services emphasised the principle of equal treatment and the obligation of transparency. The Court held that Bord na gCon's procedures lacked transparency. Interestingly, it also held that where a criterion is mentioned in a contract document or a contract notice, the criterion must be formulated in such a way as to allow all reasonably well informed and normally diligent tenderers to interpret it in the same way, that the adjudicating authority must keep to that interpretation throughout the procedure and must apply the criterion in question objectively and uniformly to all tenderers.

If you feel that the contracting authority has carried out the tendering process, or has awarded the contract unfairly, you may be in a position (subject to reviewing the matter carefully) to challenge that decision by means of judicial review proceedings. Proceedings of this nature should only be considered if appropriate grounds exist, i.e. a tenderer who loses a tender purely on price or other factors may not be successful in judicial review proceedings, unless prima facie evidence of unfairness or discrimination can be shown. Judicial review involves asking the court to review the tender process and the award of contract, with a view to either annulling the contract awarded, varying the contract and / or awarding damages.

In order to successfully launch proceedings seeking judicial review, it is necessary to compile information which will form the bedrock of any claim within a relatively short time. An unsuccessful tenderer will usually only receive limited information in the letter of regret. It is for this reason that careful consideration needs to be given to the collation of information required in order to make any application for judicial review which involves the unsuccessful tenderer swearing an affidavit setting out the history of the disputed contract and the manner in which it has been treated. This may be achieved through carefully-crafted correspondence with the public authority and the formulation of a calculated strategy, which can involve making freedom of information requests.

If the action is successful, the court can declare a) that the contract or any provision of the contract was void, b) that the contract may be changed as the court sees fit or c) that the court can make any other order as it thinks fit. The court also has the power to award damages to any person harmed by the awarding of the contract.

Because of the strict time limits that apply, it is imperative that one is able to establish as soon as possible whether or not grounds exist for an application. Accordingly, if you feel that your business has been harmed by the failure of a public body to comply with public procurement rules, you should seek the appropriate advice at the earliest possible opportunity.

One of the most important considerations to be taken into account when considering a judicial review is the strict time limit that applies. The Rules of the Superior Courts state that a review of this nature 'shall be made at the earliest opportunity and in any event within three months from the date when grounds for the application first arose, unless the court considers that there is good reason for extending such period'.

The court is unlikely to allow an extension of time, except in the most exceptional of circumstances. In the case of Dekra Eireann Teoranta v Minister for the Environment and Local Government, the Supreme Court held that an application made ten days outside of the three-month time limit should be dismissed as no good reason was shown for the delay, thus illustrating how critical it is for an affected party to make an application at the earliest possible opportunity.

In contrast, the High Court has determined that there were good reasons for extending this strict time limit in the matter of Veolia v Fingal County Council. The court decided that it was appropriate to extend the time limit as the council had failed to answer, in a transparent fashion, clear questions that Veolia had asked of it and which would have enabled Veolia to make its application for review within the three-month time limit.

For further information please contact Eoin Cunneen or Edmund Butler.


Winter 2006.