The High Court has allowed the Electricity Supply Board (ESB) to conclude contracts with six successful tenderers for overhead-lines work, lifting an automatic suspension while a procurement challenge by Powerteam Electrical Services Limited trading as Omexom remains unresolved.
In a judgment delivered on 12 February 2016, Ms Justice Costello ruled on ESB’s application under Regulation 8A of the European Communities (Award of Contracts by Utility Undertakings) (Review Procedures) Regulations. Powerteam had challenged the award decision after being told on 21 December 2015 that its tender was unsuccessful. The court accepted that Powerteam had raised a fair question to be tried; it did not determine the underlying challenge or decide whether the procurement was lawful.
The judge applied the principles used for interlocutory injunction applications. She held that Powerteam had shown damages would not adequately compensate it if the suspension were lifted, accepting uncontroverted evidence that it could struggle to retain staff and might cease operating in Ireland. But she also found damages would not adequately compensate ESB if the suspension remained in place, and that the balance of convenience favoured allowing the contracts to proceed.
ESB submitted that the suspension threatened emergency response capacity, planned maintenance and upgrade work, renewable-energy connections and urgent pole-safety work. Powerteam disputed aspects of ESB’s account, including the urgency and scheduling of works. The judge said she could not resolve factual conflicts on affidavit, but found there were sufficient undisputed matters to assess the balance. She cited the risks to electricity supply and public safety, delays to network works and renewable connections, and the effects of delay on the successful tenderers and their staff.
The court rejected two conditions proposed by Powerteam. One would have made the successful bidders’ contracts interim and automatically terminable depending on the outcome of the case. The other would have admitted Powerteam to the framework on an interim basis. The judge found the proposals would raise practical and procurement-law difficulties, and could adversely affect parties not before the court.
The court granted the relief sought in ESB’s motion, permitting it to conclude the contracts. The judgment did not decide Powerteam’s challenge to the award, which remained to be determined.