The High Court has refused to quash the Health Service Executive’s decision that Release Speech Therapy Limited was unsuccessful in a tender to provide speech and language therapy to young children in a pilot area in Louth.
The company sought judicial review of the HSE decision, arguing that the tender documents did not clearly exclude providers offering group therapy only. It also challenged aspects of the cost assessment and the scoring thresholds used to evaluate bids.
The tender, published in August 2007, sought a provider for approximately 100 children aged from birth to five with moderate to severe speech or language delays or disorders. It was intended to establish a framework agreement, with providers selected from a panel as services were needed. Release was the only tenderer. The HSE notified the company in a letter dated 31 March 2008 that its bid had failed.
The company argued that the tender documentation described group and individual therapy as examples among possible approaches, rather than making both mandatory. The HSE relied on evidence from its expert, Judith Thornton, who said the service required a range of therapies to meet the needs of the full group of children. The HSE also argued that Release’s proposal focused on children it considered suitable for group therapy and that, at interview, the company had said it would not provide individual therapy.
Justice McMahon held that a reasonably well-informed and normally diligent tenderer would have understood that it had to be able to provide both group and individual therapy. The judge said the interview gave Release an opportunity to expand the services it offered, but it declined. In those circumstances, the HSE was entitled to conclude that the company was not qualified, and the judge found no breach of transparency.
The judge also rejected the company’s transparency arguments about scoring. The HSE had not disclosed in advance certain thresholds, including a 50% overall score on criteria other than cost and 75% scores in two categories. But the court said the applicable EU law did not require advance publication of weighting criteria for this type of contract. It found no claim that the criteria had been changed or applied inconsistently during assessment. The judge said the other complaints would not alter the result once the company was found unable to provide the required service.
The HSE had argued that quashing the decision would be futile because it would not itself give the company a contract and no further competition was certain. The judge did not decide that issue, saying it was unnecessary after finding that Release was not entitled to relief. The court refused the requested order of certiorari.