The High Court has quashed the award of a fast ferry contract between Tory Island and the mainland after finding that the Minister’s reasons for choosing the winning tender were inadequate.
In a judgment delivered on 11 July 2023, Ms Justice Miriam O’Regan ruled that the explanations given to Liam O’Dubhgain, trading as WJ Duggan, did not identify specific advantages in the tender submitted by Slí Mara Thoraí Teo. The court also found that WJ Duggan lost marks for not explaining how it would cater for unaccompanied passengers with reduced mobility, although the tender documents did not require that detail.
The Minister had issued a request for tenders in February 2019 for a fast ferry passenger service running from 1 May 2019 to 30 April 2021. Both WJ Duggan and Slí Mara Thoraí Teo submitted tenders. In April 2019, the Minister notified WJ Duggan that Slí Mara Thoraí Teo had been selected as the most economically advantageous tender. The parties accepted that WJ Duggan’s tender was more economically advantageous, but Slí Mara Thoraí Teo scored 20 marks more overall.
WJ Duggan brought judicial review proceedings challenging the award. It alleged, among other matters, that the Minister had failed to give adequate reasons and had made errors in assessing several criteria. The court said some arguments raised at the hearing were outside the original grounds of challenge and were not properly before it. It therefore considered the case on the basis of the alleged shortfall in the reasons supplied.
The court found that the comments on vessel suitability, risk management, security and the mobilisation plan relied on general descriptions such as “excellent” or “very good” without identifying the facts or examples that distinguished the successful tender. On customer service and mobility, the court found that the reason given for WJ Duggan’s score included a detail that had not been sought in the tender documents.
Justice O’Regan held that the deficiencies could have affected up to 60 points, compared with the 20-point difference between the tenders. She granted an order of certiorari quashing the award decision. The judgment did not itself award the contract to WJ Duggan. The parties were given 14 days to make written submissions on costs; in default, no costs order would be made.