The High Court has ordered Kildare County Council to give RPS Consulting Engineers Limited detailed reasons for losing a tender to provide engineering consultancy services for the new Athy southern distributor road. The court found that the council’s feedback did not explain the successful bidder’s advantages with specific facts, and ordered it to provide further reasons within 15 days.
Mr Justice Richard Humphreys delivered the judgment on 15 February 2016. RPS had challenged the council’s handling of its requests for reasons after its tender was unsuccessful. Roughan and O’Donovan Limited and AECOM Limited, bidding together, were the successful tenderer. Their contract had been signed before RPS began its court proceedings.
RPS’s bid was significantly cheaper than the winning bid, so the competition turned on qualitative assessments, the judgment said. The council’s award notification gave scores and short comments, including that the winning tenderer had offered more specific detail or relevant experience. The judge found that the comments were generic, largely repeated the tender criteria and did not identify the particular matters that explained the scoring. Similar reasons had been sent to the other unsuccessful tenderers.
The judgment also found that the council had changed the published scoring method during the competition without entitlement to do so. The judge did not grant relief on that ground alone, but said the change undermined the council’s reliance on the resulting scores as support for its reasons.
After RPS sought more detail and a debriefing, the council refused. The court held that the council had separate obligations under the applicable EU procurement rules to respond to requests for further reasons, subject to specified exceptions. It found that the council’s replies were inadequate and that its concern that a debriefing could restart the time limit for a challenge was misconceived.
The court declared that the council had contravened RPS’s rights and ordered it to provide written reasons setting out the specific facts and matters behind each stated advantage of the successful tender, subject to the rules’ limited exceptions. The council must also say whether the officials who assessed the bids confirm that those matters were significant to their decision at the time; if any official will not confirm this, the council must disclose that.
The judge did not quash the original award notification, which could have restarted the period for challenging the award itself. He rejected RPS’s argument that the standstill period had not expired because the reasons were insufficient. The court adjourned the remaining proceedings and retained control of the case to address compliance and any further relief. The judgment did not set aside the signed contract.