The High Court has refused a request by ten office equipment and copier companies to add a ground to their challenge over a public printer procurement framework, ruling that their oversight did not justify an extension of time.
Neill J. delivered the judgment on 9 May 2014 in judicial review proceedings against the Commissioner of Public Works of Ireland. The companies sought permission to amend their statement of grounds and extend the time for bringing the proposed challenge.
The respondent had issued a tender request on 31 January 2013 to establish a multi-supplier framework for printers and printing devices. The companies’ original proceedings, dated 19 March 2013, alleged that the tender’s qualification criteria were disproportionate and discriminatory. Those allegations were background to the amendment application; the court was not deciding their merits in this judgment.
The proposed new ground concerned the respondent’s capacity to enter into or conclude framework agreements on behalf of organisations named in them. The companies said that ground had been omitted through oversight, although it had been raised in a notification letter to the respondent in March 2013 and in earlier proceedings between the parties. They argued the respondent would suffer little or no prejudice and that allowing the amendment could avoid separate litigation.
The respondent opposed the application, arguing that the proposed ground was known when the original proceedings began and that the applicants had missed the 30-day time limit. It also relied on the need for urgency in public procurement challenges and the potential for added evidence, cost and delay.
The judge accepted that the capacity ground would not have surprised the respondent and that there could be little or no prejudice in requiring it to answer that ground. But he said procurement judicial reviews require a strict approach to applications made outside the prescribed time limits. To establish good and sufficient reason, the applicants had to show that the relevant factor did not exist, or was unknown to them, within the time limit, or that they were effectively prevented from raising the ground in time.
Neill J. found that the information needed to plead the capacity ground was available to the applicants within the deadline. He concluded that mere oversight was not enough to justify extending time in this procurement case and refused the relief sought. The judgment determined only the amendment and extension application; it did not decide the underlying procurement challenge.