The Court of Appeal has held that an appeal over public procurement rules was moot after the circular at the centre of the dispute was replaced and the mandatory framework requirement removed.
The judgment, delivered on 11 June 2015, acceded to an application by Copymoore Limited and ten other businesses to strike out the Commissioners of Public Works in Ireland’s appeal. The court said there was no continuing controversy between the parties and no public interest reason to hear the appeal. It did not decide the substance of the Commissioners’ challenge to the High Court ruling.
The dispute arose from a 2011 competition to create a panel of seven suppliers for managed print services to public bodies. The framework was expected to cover about €100 million in spending over its initial two-year term, but membership offered suppliers only the chance to compete for contracts, not guaranteed work. The 11 applicant businesses did not submit tenders.
In July 2012, Circular 60/12 made use of specified procurement frameworks mandatory for public service bodies. For managed print services, it directed a range of public sector organisations to use the seven-supplier arrangement. The businesses challenged both the procurement process and the circular.
The High Court found they lacked standing to challenge the tender outcome because they had not participated in the competition, but could challenge the circular. It held the circular was ultra vires, insofar as it made the managed print framework mandatory, because that requirement was incompatible with EU law. The Commissioners appealed that ruling; the businesses cross-appealed the finding that they lacked standing to contest the tender process.
After the High Court judgment, the Department issued Circular 16/13, expressly replacing the 2012 circular. The new circular removed the mandatory requirement, while encouraging public bodies to use central frameworks and requiring a value-for-money justification when they did not.
The Commissioners argued that the appeal was not moot because similar procurement issues could arise again and the High Court decision could affect future frameworks. They also said the appeal should proceed because of its wider implications. The Court of Appeal rejected those submissions, finding no real current interest in the issue and no exceptional public importance warranting a decision on an academic dispute.
The court also described the earlier procedure as wholly exceptional and unusual. It said the case did not establish an alternative procedural route to the special rules governing challenges to public contract awards. The appeal was therefore treated as moot; the court made no ruling on the merits of the cross-appeal.