The High Court has allowed a joint venture challenging the award of a Luas construction contract to cross-examine evaluator Marcello Corsi about his affidavit evidence and working notes. The questioning is limited to his methodology, the tests he applied and how his notes relate to the disclosed competition criteria.
The decision, delivered by Ms Justice Baker on 13 October 2015, concerns a procedural application in the joint venture’s judicial review of the tender process. It does not determine the substantive procurement challenge or whether the contract award was lawful.
Somague Engenharia S.A. and Wills Bros Ltd say the evaluation of their tender was affected by errors and breaches of procurement rules. The joint venture came second in the competition and says its lower-priced tender should have won. The contract had already been awarded to the preferred bidder, and the applicants were primarily seeking damages; they had not applied to suspend the contract.
The tender concerned the design and construction of about 5.6 kilometres of the Luas extension in Dublin. Price accounted for 55% of the marks and qualitative criteria for 45%. The applicants focused on the assessment of proposed connections between the new line and the existing Red Line at O’Connell Street and Marlborough Street. They received four of the ten available marks for that sub-criterion, compared with eight for the winning bidder.
Corsi’s discovered notes recorded assessments under eight headings. The applicants argued that his approach broke down and recombined the tests in a way that did not match the published criteria. They also questioned his assessment of their methodology and traffic-management proposals. Transport Infrastructure Ireland relied on evidence from procurement director Tony Redmond that Corsi’s notes were working notes, were not directly reflected in the final scoring and helped divide broad proposals into manageable technical issues.
Justice Baker said the affidavits and notes left questions about how Corsi’s method related to the tender criteria and how the notes were used in the evaluation team. Although Corsi’s individual score did not determine the final score, the judge considered that his separate assessment and expertise could have influenced the process. She also rejected the respondent’s argument that delay alone should defeat the application.
The court therefore granted permission to cross-examine Corsi, but confined the questioning to the methodology in his working notes, the tests he applied and the relationship between the notes and the disclosed competition criteria. The ruling makes no finding on the applicants’ allegations about the evaluation itself.