The Court of Appeal has refused Forum Connemara Limited’s application to prevent implementation of a contract award for the Social Inclusion and Community Activation Programme (SIPAC) in County Galway while its appeal continued.
In a judgment delivered on 21 December 2016, the President held that the balance of convenience and the interests of justice favoured the Galway County Local Community Development Committee, which opposed a further stay. The court refused the application. It did not determine the appeal itself or decide the underlying procurement challenge.
The Committee had selected Galway Rural Development Company Limited to provide the programme after deciding there should be one provider for the county. Forum Connemara, an unsuccessful tenderer, challenged the procurement decisions by judicial review. The High Court rejected its challenge in August 2016. A stay on implementation had applied during those proceedings, and the High Court extended it until 3 October, leaving any further extension to the Court of Appeal. That deadline passed without an application. Forum filed its motion on 12 October, and it was heard on 16 December. At the time of the Court of Appeal’s decision, no stay was in force, although the Committee had held off proceeding pending the ruling.
Forum argued that procurement review regulations required the original stay to continue until the appeal was determined. In the alternative, it submitted that justice required a stay until then. The Committee argued that the balance of convenience favoured allowing the contract to be signed.
The President interpreted the regulations’ reference to “the court” as referring only to the High Court, not the Court of Appeal. The court therefore considered whether to impose a stay as a matter of justice between the parties, applying the balance of convenience test.
The judgment noted affidavit evidence that the planned programme was to run for 36 months and that 20 months had elapsed by November 2016. The successful tenderer had not yet provided the service, while Forum remained in effective occupation of the position. The affidavits disputed whether the full intended service had been provided to recipients. The President said it was unnecessary to resolve that dispute for the stay application: Forum had retained the position to its rival’s detriment while the tender result and earlier court applications stood.
The court also observed that financial prejudice from non-payment for services affected both organisations. It concluded that a further stay would be seriously unfair to the successful tenderer and refused Forum’s application.