The High Court has rejected a judicial review challenge by Somague Engenharia S.A. and Wills Bros Ltd to the award of the contract for a roughly 5.6km Luas extension in Dublin. The court said it would make an order refusing the relief sought.
The joint venture, which came second in the competition, argued that Transport Infrastructure Ireland (TII), the respondent contracting authority, had breached procurement rules when awarding the contract to Sisk Steconfer J.V. (SSJV). The applicants said their tender was significantly cheaper and that errors in the evaluation cost them the contract. The parties agreed that the court would first decide the substantive challenge, with any remedy or damages issues left for later if necessary.
The judgment reviewed challenges to the scoring of several tender criteria, including construction management, traffic management, programme submissions, communications and the method for connecting the existing Luas Red Line to the new line. The applicants also argued that evaluators had applied undisclosed criteria to the Red Line tie-in proposal and that TII should have held post-tender negotiations.
On the Red Line issue, the applicants received four of the ten available marks, compared with eight for SSJV. The court found that an evaluator’s personal working matrix did not amount to undisclosed scoring criteria. It accepted that the matrix was used to organise technical notes, while the final mark came from the evaluation team’s consideration of the disclosed criteria and a consensus process. The judgment also concluded that the tender required a construction methodology involving some engineering assessment of how the tie-in would be carried out.
The court rejected the challenge to the decision not to negotiate. The tender conditions allowed TII to negotiate but did not require it to do so, the judgment said. It also found no irrationality in declining negotiations, noting the risk that post-tender discussions with only some bidders could raise concerns about equal treatment and transparency.
The applicants scored 85.2 overall and SSJV scored 89.59, a difference of 4.39 points. The applicants had the lowest price and received the maximum 55 marks available for price. The judge returned unopened a sealed envelope containing SSJV’s bid price, concluding that the competition was not intended to be decided on best price alone and that the applicants had lost marks on qualitative criteria.
The court’s decision was a review of the procurement award, not a fresh scoring of the tenders. It refused the relief sought in the substantive judicial review. The judgment does not determine any later remedy or damages claim.