The High Court found that Mayo County Council failed to send a standstill notice required by procurement rules after excluding Killaree Lighting Services Limited from a public lighting tender. But the court ruled that Killaree had not shown the failure deprived it of the opportunity to seek pre-contract relief, and rejected its other pleaded challenges to the exclusion.
Mr Justice Brian O’Moore’s judgment, delivered on 13 February 2024, concerns a tender for maintenance, LED retrofit, new works and associated public lighting services for six Connacht local authorities. Mayo coordinated the procurement. Electric Skyline Limited, the successful tenderer, did not participate in the court proceedings.
Mayo excluded Killaree on 9 October 2020, saying that 66% of its tendered rates were one cent, that those rates did not cover the full value of the work, and that Killaree’s clarifications did not establish the prices were genuine or that the contract could be performed at those rates. Mayo signed a contract with Electric Skyline on 27 October. Killaree began judicial review proceedings on 6 November.
The judge held that Mayo’s 9 October letter was not a valid standstill notice. It told Killaree it had been eliminated, but did not tell tenderers that Mayo had decided to award the contract to another bidder or state when the standstill period would expire. The court treated that failure as an infringement of the standstill requirements.
However, the court did not make the mandatory declaration that the contract was ineffective. The judge said Killaree had not established that the notice failure deprived it of the possibility of pursuing a pre-contractual remedy. The exclusion letter made clear that Killaree was out of the competition, and the dispute over its tender had already become legalistic. The court found no evidence explaining why Killaree did not seek an assurance about the contract award date or start proceedings before the contract was signed.
The judge also said a discretionary declaration of ineffectiveness would have been refused had Killaree sought one. He cited the contract’s regional and national importance, its public safety functions, the involvement of other local authorities that were not parties, and legal certainty. Killaree had not pleaded for that discretionary remedy or for an alternative penalty. The judge said he could not impose a penalty fairly when neither side had addressed what form it should take or provided evidence on its basis or amount.
The court rejected Killaree’s arguments that Mayo unlawfully fettered its discretion, misinterpreted the tender documents, applied the wrong test to its explanations, or gave inadequate reasons. The judge found that procurement law required Mayo to investigate apparently abnormally low prices, and that the correspondence gave Killaree an opportunity to explain its pricing. The judgment did not settle costs or the final form of the order: those matters were listed for 15 February 2024.