The High Court ordered limited discovery from both sides in a challenge by Emovis Operations Ireland Limited to a public contract decision involving the National Roads Authority, which operates as Transport Infrastructure Ireland. Turas was named as a notice party.
In a ruling delivered on 20 June 2018, Mr Justice Robert Haughton refused the applicant’s requested categories of discovery from the respondent. He said reasons for that refusal would be given later, when the order refusing those requests would be made and perfected. In their place, he ordered the respondent to disclose specified records created by or issued to the Evaluation Committee.
Those records must show whether employee data supplied by Emovis in response to, or in connection with, RFI 25 was used in evaluating its tender, and how the committee calculated figures of 187, 155 and 116 full-time equivalent staff referred to in a notification to the applicant. The order also covers the committee’s assessments of Emovis’s proposed printing and postage resources and financial management processes where they referred to arrangements under the existing contract, as well as its assessment of resources for multi-point tolling or additional toll points.
The respondent must swear its discovery within eight weeks. The parties were directed to agree a protocol protecting commercially sensitive information by 29 June. If they could not agree, the court would determine the protocol at a Commercial List hearing scheduled for 2 July. The respondent could apply on 10 September for more time.
For discovery from Emovis, the court ordered production of documents about staffing information it gave the respondent for the existing operation from 15 July 2015 onward, and documents showing its interpretation of three information requests: RFI0004, RFI0018 and RFI0025. It also ordered records of discussions at a 21 June 2016 dialogue meeting and a debrief meeting.
The judge refused requests for documents about Emovis’s own full-time-equivalent calculations and its subjective understanding of the evaluation criteria, scoring table and comments. He said the tender documents already stated the applicant’s proposed staffing figures and there was no factual dispute warranting discovery on that point. The respondent’s calculations had been conveyed to Emovis at the debrief, records of which were covered by the order.
On the requested material about Emovis’s understanding of the evaluation criteria, the judge said that subjective understanding was not relevant to the core issue of how a reasonably well-informed and normally diligent tenderer would have understood the criteria. He declined discovery at that stage of material potentially relevant to damages, without deciding whether it could be relevant to damages or remedy. No order was made on one withdrawn category. The respondent did not pursue a request for loss and mitigation documents at that time.
Emovis was also required to swear its discovery within eight weeks, with liberty to apply on 10 September for an extension. The ruling addressed discovery only; it did not determine the underlying procurement challenge.