The High Court has refused Energoinvest Reach Active Limited permission to amend its challenge to an Electricity Supply Board procurement process, finding that the proposed changes would substantially widen the case and risk an open-ended examination of the framework’s future operation.
Mr Justice Quinn’s ruling concerned an application to amend the company’s Statement of Grounds in judicial review proceedings about an Electrical Distribution Substation Framework. The original case challenged an August 2019 pre-qualification questionnaire (PQQ), alleging that the ESB’s Contractor Safety Grading System (CSGS) was an unlawful selection criterion and disadvantaged contractors working across multiple frameworks. The ESB disputed those claims and said the CSGS was not used to select framework members.
After revising the PQQ and related tender documents in September 2020, the ESB said the CSGS would not be used to select contractors or award work, but would remain a contractor management tool. Energoinvest sought clarification and later proposed amendments alleging, among other things, that safety grading and management standards could affect work allocation and that the rules for awarding contracts were not sufficiently specified. Those were allegations in the proposed amended grounds, not findings by the court.
Justice Quinn accepted that the amendments could not have been sought earlier and that the company had good reason to await answers to its clarification requests, which were published on 19 October 2020. But he considered the proposed case a significant enlargement of the original challenge, involving new alleged infringements, a challenge to a revised procurement decision and potential further evidence and discovery. He said permitting it could open the way to a “rolling” inquiry into how the framework operated in future.
The court therefore refused the requested amendment. It did not decide whether the original proceedings had become moot. The ESB had informed the court after the hearing that Energoinvest had been successful in tendering for the framework; Justice Quinn said the parties should first consider that development and make further submissions if necessary. The judgment did not determine the underlying procurement allegations.