The High Court has refused a losing tenderer’s application for disclosure of a rival’s confidential pricing and for one of its directors to access confidential documents through a court-ordered ring.
Mr Justice Twomey delivered the ruling on 6 February 2025 in Kerrigan Sheanon Newman Unlimited Company’s challenge to a contract award by the Sustainable Energy Authority of Ireland (SEAI). The contract covers managing-agent services connected with home retrofitting, is expected to last up to five years and was estimated to be worth €75 million.
KSN, the incumbent provider since 2012, challenged the SEAI’s decision to award the contract to Abtran on 14 June 2024. It alleges, among other things, that the SEAI wrongly accepted Abtran’s apparently abnormally low bid and that Abtran’s proposed combination of surveys, building energy rating assessments and inspections did not comply with the tender requirements. Those issues remain for the substantive challenge; this ruling concerned discovery and access to confidential documents.
The judgment records that Abtran’s bid was 49% below KSN’s bid and 30% below the price KSN was receiving under its existing contract. The SEAI had identified Abtran’s bid as appearing abnormally low, sought an explanation and concluded that the evidence satisfactorily accounted for the price. The judge said the dispute at trial would focus on whether the SEAI’s process complied with the applicable procurement rules, rather than on the court deciding the bid’s price in isolation.
KSN sought Abtran’s responses on cost and documents showing how it combined and priced services. The judge found that disclosure was not necessary to resolve the pleaded dispute. The SEAI had agreed to provide other material, including its evaluation records and communications with Abtran about the cost criterion. The fact that Abtran’s pricing assumed services could be combined during one site visit was not disputed; whether the tender rules permitted that approach was a matter of interpreting the tender documents.
The court also refused KSN’s request to include director Justin Travers in the confidentiality ring. Mr Travers offered an undertaking not to use or disclose information outside the proceedings and not to be involved in any re-run of the tender. The judge considered that an undertaking could not adequately address the commercial risk, including the difficulty of preventing unconscious use of information once learned. He applied the general approach that confidentiality rings ordinarily give access to parties’ lawyers, with possible expansion for independent experts in technical matters.
The court refused the applications for the pricing material and the director’s admission to the ring. It did not decide the underlying procurement challenge. The case was provisionally listed for mention a week after judgment to address final orders and costs, with liberty for the parties to notify the Registrar if the listing was unnecessary.