The Court of Appeal allowed an appeal by the National Treasury Management Agency (NTMA) against a High Court order requiring discovery in a procurement challenge brought by BAM PPP PGGM Infrastructure Coöperatie UA. The ruling narrowed the discovery order; it did not decide whether the NTMA was entitled to accept a late tender or whether the procurement decision was lawful.
BAM’s substantive proceedings challenge the NTMA’s selection of Eriugena as preferred tenderer for a contract to design, finance, build and maintain two quads for Dublin Institute of Technology at the former St Brendan’s Hospital site in Grangegorman, Dublin 7. BAM alleges that the NTMA could not accept a tender containing documents received after the deadline, and seeks orders including setting aside Eriugena’s selection. Those are claims in the underlying case, not findings made in this appeal.
The tender deadline was 5pm on 28 November 2014. The NTMA told BAM that eight of Eriugena’s 280 documents had not finished uploading by then, and were received between 5.03pm and 6.13pm. It said the documents were not modified after the deadline and that some repeated material submitted on time. The NTMA also accepted Kajima’s tender despite late delivery of part of its documentation. The appeal concerned discovery, not the merits of those decisions.
The High Court had ordered discovery across 18 categories, subject to protections for rival tender contents and bid markings. The Court of Appeal held that the pleaded issues defined the scope of discovery. It said most concerned legal interpretation and that the pleadings disclosed no factual dispute about the wider investigations and decision-making covered by the contested categories. The court found that discovery could not be used to explore for possible relevant material or to test credibility.
One pleaded issue potentially raised a factual question: whether the NTMA took irrelevant considerations into account when deciding to accept Eriugena’s tender. The Court of Appeal said discovery that had been ordered and was not under appeal was sufficient for the matters in issue. It allowed NTMA’s appeal, while leaving the undisputed discovery categories in place. It also declined to impose NTMA’s proposed restrictions relating to Kajima documents and the time of receipt. The court’s order therefore preserved the agreed discovery while overturning the broader disputed requirements.