State authority’s decision to award €1.2m public contract had been made in line with fair procedures



A local development company in Connemara, County Galway, failed in a High Court challenge to the decision by a state body to award the entirety of a public contract to another applicant – a development programme that in previous years had been divided into two separate contracts.

Justice Hedigan stated that the tender process had been carried out on a level playing field, and that the local development company had been given adequate reasons for their tender being unsuccessful.

Background

Forum Connemara Ltd sought judicial review of a determination of Galway County Local Community Development Committee (GLCDC) under Order 84A of the Rules of the Superior Courts 2010, relating to the review of the award of a public contract.

Forum Connemara, ‘a rural development partnership of voluntary, community and statutory bodies’, was established in 1990 by ‘Connemara West’ to administer the EU Poverty 3 Programme and various other social programmes over the years – its main objective is to put in place strategies and programmes to tackle the problem of rural decline and peripherality in the Connemara area.

In 2006, the Minister for Community, Rural and Gaeltacht Affairs decided that ‘Connemara should have an organisation of its own to continue this work and deemed Forum Connemara suitable and compliant for this purpose’.

GLCDC – the contracting authority for the purposes of the award of the public contract under challenge – is a statutory body established in 2014 pursuant to the provisions of the Local Government Act and Statutory Instrument No. 234/2014. It is charged with, inter alia, co-ordinating, managing and overseeing the implementation of local and community development programmes that have been approved either by the relevant local authority or by agreement between the GLCDC and a relevant public authority, such as a Government Department or State Agency.

The SICAP contract

One such programme is the Social Inclusion and Community Activation Programme (SICAP) which is aimed at tackling poverty and social exclusion in disadvantaged communities – the GLCDC’s role is to provide direct funding to various programme implementers or service providers.

In previous years, the funding for SICAP had been implemented by two separate programme implementers – Forum Connemara and Galway Rural Development Company Limited – and each was in control of one of two areas or lots. However, on 30th September 2014, GLCDC made a decision that there should be only one service provider or programme implementer for SICAP for the entire County of Galway.

An invitation to tender was issued to five companies selected under the stage one procedure on 20th October 2014 – Justice Hedigan stated that this clearly outlined that GLCDC, required the delivery of services in respect of one single lot (the whole of the county of Galway).

The budget for the SICAP for County Galway which would come under the control of the successful candidate was to be 1.2 million Euro or thereabouts for the period spanning April to December 2015. On 2nd March 2015, Galway Rural Development Company Limited was awarded the contract and Forum Connemara was advised that it had been unsuccessful in its tender.

Justice Hedigan stated that this decision concerned a contract falling within the scope of Directive 2004/18/EC and Directive 2007/66/EC as amended, as implemented by S.I. 329/2006 European Communities (Award of Public Authorities’ Contracts) Regulations 2006 and S.I. 130/2010 European Communities (Public Authorities’ Contract) (Review Procedures) Regulations 2010.

Reliefs sought

In the High Court proceedings before Justice Hedigan, Forum Connemara sought six reliefs, including a declaration that the decision made by GLCDC was invalid and ineffective, and an order of certiorari quashing the purported decision of GLCDC to refuse to award the contract for the appointment of programme implementers to the SICAP for County Galway.

Furthermore, Forum Connemara claimed that ‘the invitation to tender did not take it into account the geographical, social and cultural uniqueness of County Galway’

Previous proceedings had already established that Forum Connemara could not challenge the GLCDC decision of 30th September 2014 that there should be only one service provider for the entire County of Galway, as they had been well outside the 30-day limit to bring such an action.

From this, Justice Hedigan stated that there were two issues to be addressed:

  • Firstly, were the reasons given by Galway County LCDC to Forum Connemara on 2nd March, 2015, adequate and intelligible?
  • Secondly, was the decision proportionate, rational and in accordance with fair procedures as set out in the various EU Public Procurement Directives?

Conclusions

In relation to the first question, Justice Hedigan was satisfied that ‘by any measure that the reasons provided for the decision outlined in the letter of 2nd March went beyond any general requirement’.

Addressing the issue of proportionality, Justice Hedigan stated that this issue could not in fact arise in the present proceedings as the all other tenderers had to comply with the invitation, that the ‘playing field was a level one’, and after the initial decision to group the entire County of Galway as one lot, GLCDC did not have the ability to change the parameters of a national programme. Further, there could be no finding of irrationality, even by applying a ‘clear error’ test.

Justice Hedigan was of the view that Forum Connemara’s real contention lay with the earlier decision that there should be only one service provider, however previous proceedings had already made it clear that this was not a consideration for the present High Court proceedings.

Refusing all reliefs sought by Forum Connemara, Justice Hedigan stated that he could not find anything ‘manifestly wrong’ with the GLCDC decision process that led to Forum Connemara being unsuccessful in its tender.

  • by Róise Connolly for Irish Legal News