The Court of Appeal has allowed SERE Holdings Limited’s appeal against the award of an HSE emergency air ambulance contract to IAS Medical Limited, finding that IAS did not meet the tender’s minimum turnover requirement. The court sent the case back to the High Court to decide what relief, if any, SERE should receive.
The dispute concerned a requirement that tenderers have at least €4 million in annual turnover from specified products or services in each of the three preceding years. SERE argued that the specified services covered air ambulance work and that IAS did not qualify. At the appeal hearing, the parties agreed IAS met the threshold only if it could include revenue from transporting organs without patients or organ retrieval teams.
The HSE maintained that the tender documents required the successful provider to transport organs as well as patients and organ retrieval teams. It relied on references to “organ retrieval missions” in a specification response document. The Court of Appeal said those references appeared in the context of transporting organ retrieval teams and did not create a separate obligation to carry organs alone.
The court noted that the tender described the main service as transporting patients between Ireland and other countries, and separately said aircraft might also be required to transport organ retrieval teams. It concluded that a reasonably well informed and normally diligent tenderer would understand the specified services to include patient transfers and transport of retrieval teams, but not organ-only transfers. On the agreed position about IAS’s turnover, the court found the minimum requirement was not met.
The appeal court set aside the High Court judgment and order, which had found that organ transport was included. Its decision did not determine SERE’s entitlement to a remedy. That question was remitted to the High Court, which will have to take account of the fact that the contract was awarded and executed in 2021.
The Court of Appeal rejected SERE’s argument that the turnover criterion covered only core services. It also did not decide the appeal on SERE’s separate claim that the tender documents were ambiguous: the court said that argument had not been pleaded and was unnecessary to resolve the appeal.