The High Court ruled that BAM PPP Ireland Limited and Balfour Beatty Ireland Limited must pursue their claim against the National Roads Authority (NRA) under Order 84A judicial review procedures. The ruling resolved a preliminary question about how the claim must be brought; it did not decide whether the NRA disclosed the consortium’s information or whether the consortium is entitled to damages.
The consortium, which tendered collectively as BAM Balfour Beatty, alleges that commercially sensitive information about its bid for the Gort to Tuam motorway contract was disclosed to a rival during the procurement process. It says the rival ultimately won the contract. The NRA disputed the use of plenary proceedings, arguing that claims arising from alleged breaches of procurement law had to follow the procedures and time limits for procurement review.
The plaintiffs described their case as a common law claim for breach of contract and negligent misrepresentation. Justice Baker found that the invitation to tender arguably created a contractual obligation on the NRA to protect commercially sensitive information. But she said that did not determine the procedure for enforcing the alleged obligation. Looking at the substance and source of the claim, she concluded it arose from the procurement process and alleged breaches of procurement rules.
The court held that a claim seeking damages can still fall within the procurement review regime, even if the claimant does not seek to overturn the contract award. It also found that the alleged disclosures during the competition were decisions within that process for the purpose of the regime.
Justice Baker answered the agreed preliminary question by ruling that the plaintiffs were required to bring the claim under Order 84A of the Rules of the Superior Courts. The judgment does not determine the alleged disclosure, liability, damages, or whether any time limit was met. It says the present application did not engage domestic provisions for extending time.