The High Court has ordered the National Treasury Management Agency (NTMA) and the Minister for Education and Skills to disclose specified records concerning two late public tenders, in proceedings brought by BAM PPP PGGM Infrastructure Cooperatie U.A. The order concerns discovery for BAM’s challenge to the acceptance of the tenders; it does not decide whether that acceptance was lawful.
The judgment, delivered by Mr Justice Max Barrett on 15 June 2015, records that the invitation to negotiate required final tenders by 5pm on 28 November 2014. The NTMA later informed BAM that it had accepted a tender from Eriugena, part of which arrived after the deadline. BAM also learned that Kajima had not submitted all its tender documentation by the cut-off. BAM said it was the only tenderer to submit a completed final tender on time.
BAM sought discovery of records relating to the late uploads, the NTMA’s investigations and assessments, its decision to accept the tenders, and related internal matters. The NTMA opposed the application, including on grounds that the requests were burdensome and that there was no factual dispute. The judge found that issues about what the NTMA knew and considered—including the timing of uploads, possible technical causes of delay, and whether evaluation had begun before the acceptance decision—made some discovery relevant and necessary. He found no substantive evidence of the burden claimed.
The court ordered disclosure of specified communications and records about uploads received at or around the deadline; the NTMA’s investigations and compliance checks; its assessments of whether late documents could be accepted and whether technical problems caused delay; and records of the decision to accept the tenders. The order also covers certain communications about late acceptance and, subject to a time limit, records relating to Eriugena’s appointment as preferred tenderer. The court noted that some discovery categories had been agreed between the parties and required no further order.
The order has limits. BAM is not to receive the content of Eriugena’s or Kajima’s tender documents, or the NTMA’s grading of either tender. The judgment rejected some broad or unrelated requests, including records about whether either tenderer gained an advantage and later tender clarifications or evaluations. It also required discovery of additional relevant documents referred to in the NTMA’s opposition papers if those documents had not already been provided.
The judgment addresses only the discovery application in the judicial review proceedings. It does not resolve BAM’s underlying allegations about discretion, equal treatment, transparency, proportionality or the treatment of the deadlines.