The High Court has ordered the lifting of a suspension preventing the National Treasury Management Agency and the Minister for Education and Skills from concluding a contract with the Eriugena consortium to build part of the new DIT campus at Grangegorman. The order will take effect only when one of the respondents provides an undertaking as to damages.
Mr Justice Max Barrett delivered the judgment on 1 December 2015. BAM PPP PGGM Infrastructure Coöperatie U.A. had brought judicial review proceedings challenging the NTMA’s decision to accept a late tender from Eriugena. The underlying challenge had not been decided. The application before the court was the State respondents’ request to lift the automatic suspension that otherwise prevented the contract from being concluded while the challenge was pending.
The judge held that the 2007 EU Remedies Directive did not require an automatic suspension in this case because BAM was challenging an interim decision in the tender process, rather than a decision awarding the contract. Ireland’s regulations had provided for a suspension in those circumstances, and the 2015 amendments allowed a contracting authority to ask the High Court to lift it.
Applying the Campus Oil principles for interlocutory injunctions, the judge found that BAM had raised fair questions for trial. BAM argued that Eriugena’s tender was late and that accepting it was unlawful. The NTMA had identified provisions on which it could have relied, but had not identified which provision it actually used. The judgment did not decide whether the acceptance was lawful.
The court concluded that damages were an available and suitable remedy for BAM, although not its preferred remedy. It also noted BAM’s concession that the respondents could not be adequately compensated by damages for inconvenience if the proceedings failed and the suspension remained in place.
In balancing the interests, the judge considered the consequences of delay for the campus timetable, public costs, students and the wider Grangegorman regeneration plans. He also considered the need to preserve the integrity of public procurement, but said there was no suggestion of dishonesty by the State. The balance of convenience favoured the State respondents, and the court was satisfied that the contract could proceed.
The ruling concerns only whether the suspension should be lifted. It does not resolve BAM’s substantive judicial review or determine who was entitled to win the tender. The respondents may conclude the contract once the required undertaking is provided.