The High Court has ordered Donegal County Council to disclose specified documents about SSE Airtricity’s tender for a county lighting contract in a judicial review brought by Electric Skyline Limited. The order is subject to confidentiality commitments, which the court said it would discuss with counsel before finalising the orders.
The judgment, delivered by Mr Justice Twomey on 2 April 2019, concerned discovery at an interlocutory stage. It did not decide whether the council lawfully disqualified Electric Skyline or whether SSE should also have been excluded from the tender process.
The contract covered lighting, maintenance services and light fittings. The tender notice estimated its value at €3.5 million excluding VAT. Electric Skyline, whose address was stated as Claremorris, County Mayo, challenges its disqualification. The council said its tender contained a high proportion of rates that could not cover the full cost of the work at market prices. Electric Skyline argued that its prices reflected market conditions and economies of scale, and alleged that SSE was treated more favourably despite non-compliant rates in its successful bid.
The council acknowledged that SSE’s tender contained three nominal rates of €0.01. It said two had been identified during evaluation and treated as de minimis, and that a third was even more inconsequential. Those were the council’s explanations in affidavits; the court did not determine the underlying procurement challenge in this judgment.
The judge held that access to documents about SSE’s tender was necessary for Electric Skyline to advance its claims of unequal treatment and improper evaluation. The discovery ordered covers documents considered in reviewing or evaluating SSE’s tender, SSE’s tender and pricing submission, relevant communications and post-submission clarifications, and documents relating to the council’s assessment of SSE’s pricing, including when it reviewed the tender.
The court also permitted discovery of documents about the council’s interpretation of the tender instructions and pricing provisions, including Section 4.6, but only insofar as they related to SSE’s tender.
By contrast, the judge refused discovery of documents about the council’s evaluation of Electric Skyline’s own prices. He said the council’s stated method had been set out in correspondence and the dispute over its approach to “market prices” was already clear. He also rejected two broad categories seeking general evaluation records and records under the 2016 procurement regulations, describing them as a fishing exercise given the narrower categories allowed.
The judgment did not set out the final orders: the court said it would hear from counsel about confidentiality before finalising them.