The High Court rejected Danninger’s challenge to the award of a contract to develop a site for a Dublin bus interchange, finding that the tender process was lawful and dismissing the applicant’s remaining arguments about transparency and discrimination.
The judgment, delivered by Mr Justice Charleton on 23 February 2007, concerned a site at Great Strand Street and Upper Abbey Street. Bus Átha Cliath sought a bus interchange at ground level, with commercial development above and around it. Deepdrill Developments Limited, trading as O’Dwyer Leisure Group, and Bennett (Construction) Limited were named as notice parties.
The court held that the arrangement was a public works contract under Council Directive 93/37/EEC, rather than a public works concession. The developer would build the interchange but would not operate the bus service or earn income from its operation, the judgment said. The contracting authority therefore had to use an open or restricted tender procedure.
Danninger argued that the second round of bids, requested as “best and final offers”, breached the tender rules. The court held that national and European law did not prohibit such a round where the chosen procedure was followed. It said the tender documents should tell prospective bidders in advance that a further offer may be requested after tenders are received and preliminarily evaluated. The documents in this case did so, and the same opportunity was given to all tenderers.
The notice party raised delay and acquiescence as reasons to refuse relief. The court addressed those issues despite finding the process lawful. It said challenges to procurement procedures must be brought promptly, including before a contract award where the alleged defect is apparent from the tender documents. The judgment also found no actual prejudice to Danninger and no evidence that information had been leaked while bidders were preparing their final offers.
The court concluded that the process gave tenderers an equal chance to meet the published specifications and offer the highest price. It dismissed the argument that the procedure lacked transparency or created an appearance of discrimination. The judgment does not record an order setting aside the award; the applicant’s challenge did not succeed.