The Supreme Court allowed an appeal by Advanced Totes Limited over a contract to provide totalisator services at greyhound racing stadia, finding that the tender criteria failed to disclose the importance of where the system’s communications hub would be hosted.
In a judgment delivered on 23 March 2006, Mrs Justice McGuinness said the location of the IT hub was a criterion of considerable importance in the award to Autotote Worldwide Services Limited. Yet the Invitation to Tender did not mention whether the hub would be hosted internally by Bord na gCon or externally by a provider, or rank that factor among the award criteria. The court held that the process was seriously lacking in transparency and did not meet the requirements of the EU Services Directive.
The contract covered totalisator services at stadia operated by Bord na gCon, the contracting authority. Four parties tendered. After the initial evaluation, the Award Committee considered Amtote’s bid technically suitable but too expensive. The committee sought revised prices from all four tenderers and later decided to recommend Autotote. Bord na gCon awarded it the contract.
Advanced Totes argued that the tender process was flawed, including because the hub criterion had not been disclosed. It also alleged that confidential pricing information had been given to Autotote and that the committee had first decided to recommend Advanced Totes before changing course. Those allegations were rejected in the High Court, which refused the requested relief.
The Supreme Court upheld the High Court’s findings on those factual disputes. It said the committee’s role was to recommend a tenderer to the Board, and the evidence supported the finding that there had been no earlier decision to recommend Advanced Totes. The court also found no credible evidence that Autotote had received confidential pricing information. It observed that contact with tenderers during the process would generally have been more prudent only for clarification.
The decisive issue was the undisclosed hub criterion. Evidence showed that an internally hosted hub would bring additional costs and management requirements for the Board, while Autotote offered to host its own hub. The judgment said that factor played a large part in the award. General language in the tender about future-ready technology and streamlining infrastructure did not tell tenderers how the hub issue would be assessed.
The court allowed the appeal on the transparency ground. The supplied judgment excerpt does not state what consequential relief, if any, was ordered, and it says the court did not need to address the other criteria raised by Advanced Totes.