Nichola Mallon

Infrastructure Minister Nichola Mallon told MLAs yesterday that the Department had considered “whether parts of the judgment presented so many practical difficulties with accepted procurement practices that a further appeal to the Supreme Court may be required”.

“On a fine balance, however, and after careful consideration, I have concluded that the Department should not appeal the Court of Appeal judgment,” she said.

Construction company Northstone (NI) Limited lodged judicial review proceedings in 2015 against the former Department for Regional Development over its handling and determination of a tender process for road resurfacing contracts.

The Court of Appeal found in April 2021 that there had been a “manifest error” in the Department’s approach to the award of multiple, term-type maintenance contracts across Northern Ireland.

The Department “engaged in a secret, bilateral and unrecorded process with one of multiple bidders”, a company called McQuillan, which “was accorded special treatment in a clandestine and purely bilateral process, and, in consequence, the level playing field was distorted for other bidders”, the court said.

Its post-tender evaluation and scoring interaction with McQuillans and the resulting related contract award decisions were found to not be in accordance with the governing EU legal rules and principles and were not permitted by the competition rules.

Ms Mallon said: “It is essential to ensure that the Department, and others, learn from those judgements, and I have asked my officials for options so that I can consider how best to do that, with the purpose of designing revised procurement strategies and processes for my Department that can help in reducing the risk of successful legal challenge when contracts are awarded.”

The Department for Infrastructure is also facing fresh legal challenges from a number of companies which were unsuccessful in a 2021 competition for road resurfacing contracts.

Ms Mallon told MLAs her Department “will continue to take all possible steps, working collaboratively with other procurement experts and with our legal advisers, to find new approaches that allow us to move forward as quickly as possible and to award contracts that can allow much-needed resurfacing work to take place”.