The High Court has quashed Dublin City Council’s procurement process for a framework to maintain and repair boilers in its public housing, finding that tender requirements on replacement parts and turnover were not clear enough to ensure equal treatment of tenderers.
Gaswise Ltd challenged its exclusion from the competition and the decision to award ranked places. The case proceeded in modules. This judgment, delivered by Ms Justice Finlay Geoghegan on 14 February 2014, addressed the first module, focused mainly on the exclusion decision and related issues. No contract had been entered into with the successful tenderers.
The council excluded Gaswise after deciding that it had failed a pass-or-fail criterion requiring a replacement-parts statement. The tender documents also included a checklist referring to an itemised list of replacement parts. A clarification said that the council would request a priced parts list before a contract was signed, but did not clearly state that the checklist item should be replaced by a statement.
The judge found that the documents, read together, did not clearly and precisely tell reasonably well-informed and normally diligent tenderers that they had to submit a replacement-parts statement with their tenders. The council had therefore breached its duties of equal treatment and transparency, and Gaswise had been unlawfully excluded on that basis. The judge did not need to decide whether other tenderers should also have been excluded under that criterion.
The court also considered the turnover requirement in relation to BM Services, which the council had treated as the first-ranked tenderer. The disclosed tender statement referred to combined turnover. The judge found that the tender documents required a statement that the tenderer’s own turnover exceeded €250,000 in one of the previous three financial years, and did not clearly allow turnover to be combined with that of subcontractors. Gaswise was entitled to challenge the council’s decision to admit BM Services, and that challenge was not time-barred.
The judge did not decide whether EU procurement law nevertheless obliged the council to accept BM Services’ combined-turnover statement. She considered that question unnecessary to resolve in this case and potentially one that could warrant a reference to the EU court. The separate challenge to the adequacy of the council’s reasons was not pursued at the hearing.
In deciding the remedy, the court cited the evaluation panel’s admitted mistake in treating Gaswise and another tenderer differently on the replacement-parts criterion, as well as concerns arising from the tender documents and the turnover issue. It concluded that quashing only Gaswise’s exclusion would not provide effective protection of its rights and that quashing the full process was proportionate.
The order quashed the entire procurement process started by the 18 April 2013 invitation to tender, including decisions at the selection and award stages and all other steps. The judgment did not decide the remaining modules of Gaswise’s challenge.