The High Court has dismissed Fresenius Medical Care (Ireland) Limited’s challenge to the HSE’s scoring of its bids in a competition for satellite haemodialysis units in Dublin North East and Dublin Mid-Leinster.
In a judgment delivered on 16 July 2013, Mr Justice Michael Peart found no manifest error and no breach of the general principles of equal treatment and transparency. The case concerned the scoring process; the court did not conduct a fresh assessment of the bids.
The HSE’s procurement had four lots and used a four-stage process: expressions of interest, tender proposals, dialogue and award. Quality accounted for 35% of the marks and cost-effectiveness for 65%. A tender had to reach 70% in each of four specified quality subcategories before it could be considered on cost. Fresenius scored 53.9% in Patient Experience for Lot 1, so its bid was excluded from further consideration on that lot. Beacon Medical Group was ranked first in all four lots. Because the HSE had stated no single bidder would receive every lot, Fresenius received Lot 2 as the next-ranked bidder there.
Fresenius challenged, among other matters, the low scores for its proposed City North site at Gormanston. It argued that the site met three of four stated location criteria and that HSE’s description of it as rural introduced an unpublished criterion. The HSE said its concerns about the site’s remoteness and industrial setting had been raised during site visits and dialogue meetings. The judge found the scoring did not amount to manifest error and said Fresenius had not identified Stamullen as the population centre on which it later relied.
The company also disputed scores for public transport access and for staffing-related questions. On transport, the court noted that Fresenius had not identified the Matthews Coach stop or service in its tender response, and held that the HSE was not required to fill gaps in the information supplied. On staffing, the judge found that the answer to a question asking bidders to explain how they would maintain required staffing levels did not explain how the proposed staff would meet those requirements. He also found that the company’s answer about a designated nurse outside core hours was conditional, despite the tender stating that the nurse must be present.
The judge said the HSE could exercise professional judgment in evaluating bids, subject to clear rules being applied equally and objectively. He concluded that the disputed marks were not clearly wrong and that the tender process had not breached the applicable general principles. The proceedings were dismissed; the judgment did not alter the procurement award.