The High Court has refused Advanced Totes Limited’s application to overturn Bord na gCon’s award of a totalisator services contract to Autotote Worldwide Services Limited, finding that the Board acted within its discretion in applying the tender criteria.
Advanced Totes had sought declarations that the procurement process breached European public procurement rules, an order quashing the award, and a declaration that the contract was void. It also alleged that the Board disclosed its tender price to Autotote and that the re-tender on price was prompted by contact between Autotote and the Board.
The court rejected the allegation that Advanced Totes’ price had been disclosed. It described the claim as unsubstantiated and speculative, and found no evidence that any committee member had revealed the price. The court also found no evidence that the contact between Autotote and the Board was inappropriate. It observed that it would have been more prudent for the Board not to respond to Autotote during the tender process, but said any imprudence was resolved by the later invitation to all tenderers to resubmit prices.
The judgment addressed evidence that a committee member had told Advanced Totes, off the record, that it would be recommended for the contract. The court said the committee’s role was to recommend, not decide, and found no evidence of a decision to recommend Advanced Totes or to accept its tender. The Board’s decision-making authority was Bord na gCon.
The court found that the Board’s only decision was to reject every tenderer’s pricing proposal and invite revised prices, with the other tender terms unchanged. Advanced Totes participated in that process. The judgment said the re-tendering process appeared to lack equality of treatment and transparency, but concluded that tenderers who had submitted bids were not prejudiced by it. It also found that failure to re-advertise the price-only process was not fatal, and that it did not amount to a negotiated procedure.
In assessing value, the Board’s committee added 0.3 percentage points to Advanced Totes’ 1.5% margin to account for the cost of hosting the system, giving an assessed figure of 1.8%. The court found that this was an appropriate appraisal under the criterion of the most economically advantageous tender. It said the cost assessment was decisive and the differences between system versions were not.
The judgment noted that the published criteria did not appear to be ranked by importance and said it was unclear whether all strict requirements of the directives had been met. However, it found no breach of equal treatment or transparency that caused prejudice to Advanced Totes, and held that the Board acted within its discretion. The court refused the relief sought. The judgment does not state the final status of the contract.