The High Court has refused Glenman Corporation Limited permission to bring a late challenge to its exclusion from a Galway City Council tender to complete 58 social housing units in Ballybaan More.
Mr Justice Twomey, delivering judgment on 20 June 2023, ruled that Glenman had not shown good reason for missing the 30-day deadline for public procurement challenges. The company issued proceedings on 23 March, about two months after the deadline it accepted had expired on 22 January. The judge also considered the Council’s position that the deadline could run to 10 February, but found no good reason for leave on either calculation.
The €10 million contract is for the remaining work on homes originally being built by Glenman under an earlier contract. The Council terminated that contract in June 2022, citing delays. Glenman disputes responsibility for those delays and the entitlement to terminate. A conciliator upheld the Council’s termination decision, but Glenman filed a notice of dissatisfaction. Justice Twomey said the conflicting affidavit evidence meant he could not decide who was responsible for the historic delays in this application.
The Council’s December 2022 decision proposed excluding Glenman under procurement rules concerning significant or persistent deficiencies in a prior public contract. It gave Glenman until 6 January to provide evidence of measures demonstrating its reliability. Glenman did not provide that evidence, and the Council confirmed its exclusion on 11 January.
Glenman argued that its delay was justified by the Council’s reference to a confidential conciliation recommendation in the exclusion decision. It later said the recommendation was “without prejudice” and argued that issuing proceedings referring to it would risk an abuse of process. The judge found that the contemporaneous correspondence during the deadline referred to confidentiality, but not to the recommendation being without prejudice. He concluded that Glenman’s later explanation was affected by confirmation bias and that the confidentiality dispute did not prevent it from issuing proceedings and asking the court to address the issue.
The judgment stresses that the application concerned permission to start proceedings out of time, which could trigger suspension of the public contract. It distinguishes that step from a late amendment to proceedings already issued within time. Applying a strict approach to the deadline, the court refused leave. It ordered the parties to seek agreement on outstanding matters and provide any draft agreed order to the Registrar. If final orders are needed, the case is provisionally listed for mention one week after judgment at 10.30am.