The Court of Appeal has refused a contractor’s application to halt Kildare County Council’s new framework for planned building maintenance while he appeals a High Court judgment rejecting his challenge to his exclusion from the tender competition.
In a judgment delivered on 21 December 2020, Ms Justice Costello refused a stay on the High Court order and on implementation of the framework or the conclusion of contracts under it. She also refused an alternative injunction, which she understood was no longer being pursued; in any event, no undertaking as to damages had been offered. The court was to hear submissions on the application’s costs on 22 January 2021. The judgment did not decide the underlying appeal, which was listed for hearing on 26 March 2021.
The contractor had sought to join the competition for two lots covering maintenance and refurbishment of council housing. The council eliminated him after he did not submit the required quality documents for either lot and did not provide a revised pricing document for Lot 2, despite being asked to do so. The High Court dismissed his judicial review challenge in September 2020, finding the elimination decision within the council’s authority. The contractor appealed.
The new framework was adopted on 14 October 2020, with 22 contractors appointed. The judge noted that the earlier framework had ended and could not be revived. She also considered the council’s evidence about housing maintenance needs, the new framework’s capacity and pricing, and the effect a stay could have on successful tenderers and their businesses.
The council did not dispute, for the purpose of the stay application, that the contractor had arguable grounds of appeal. But the judge considered the apparent strength of the appeal and described as “flimsy” his argument that material supplied at an earlier pre-qualification stage should have satisfied the requirement for quality material in the tender itself. She also took account of his delay in seeking a stay after being told the council intended to establish the new framework, and her assessment of emails in which he linked an appeal and stay to negotiations with the council.
The judge accepted that losing work could have grave consequences for the contractor and that damages would not adequately remedy his position if he ultimately succeeded. She weighed that against the council’s inability to rely on the former framework, the interests of the successful tenderers, and the public interest in maintaining housing works. She concluded that the balance required refusing the requested stay. The merits of the appeal remained for later determination.