Finding
The Irish High Court has found that there was no error in relation to the decision taken by Galway County Local Community Development Committee (the "Committee") to award Galway Rural Development Company Limited ("GRDCL") with the implementation of the Social Inclusion and Community Activation Programme (“SICAP”) in Co. Galway. The case was brought by Forum Connemara Limited ("Forum Connemara") who sought to have the Committee's decision quashed following their unsuccessful tender to be the sole service provider of SICAP in the region.
Facts
On 30 September 2014, the Committee made a decision that there should be only one service provider or programme implementer for SICAP for the entire County of Galway. Previously, Galway County was divided into two areas or lots with the delivery of SICAP shared between Forum Connemara and GRDCL respectively. A tender process commenced in October 2014 and Forum Connemara submitted a tender for the single contract. GRDCL was awarded the contract in early 2015 and Forum Connemara was notified that they had been unsuccessful by way of a letter dated 2 March 2015.
Forum Connemara commenced a challenge on 23 March 2015, seeking an order overturning the decision of 30 September 2014 to structure the contract as a single lot, as well as an order overturning the decision of 2 March 2015 to reject its tender.
Procedural Background – High Court & Court of Appeal
On 23 March 2015, Barrett J. in the High Court granted Forum Connemara leave to apply for judicial review of the Committee's decision to designate one SICAP service provider to the Co. Galway region. Forum Connemara was also given leave to seek to have the decision to contract award decision quashed. An order was also made staying the contract award decision until the determination of the proceedings.
The Committee countered with an application to strike out proceedings on the basis of delay. The Committee contended that a delay of 22 weeks from when the decision to consolidate lots was made prevented Forum Connemara from bringing an action to have the decision judicially reviewed.
Taking into account the voluntary nature of Connemara Forum, the unusual nature of the procurement contract and the significant public concern following the Committee's decision in September 2014, Barrett J. was satisfied that 'good reasons' existed to extend the 30 day time limit for such actions and permit Forum Connemara's challenge to proceed.
The Committee appealed the delay aspect of Barrett J’s decision. Irvine J in the Court of Appeal held that Barrett J. had erred in finding 'good reasons' which warranted an extension of the 30 day time limit. Irvine J. noted that, with their participation in the tender process, Forum Connemara had approbated the Committee's decision for its own commercial benefit. The Court of Appeal held that enabling such an action to proceed would constitute a "gross impairment of the effectiveness of the implementation of the Community Directives on the award of public contracts".
Judicial Review – High Court
The proceedings before Hedigan J. were solely concerned with a review of the Committee's decision to award the contract to GRDCL.
Dismissing Forum Connemara's preliminary objection regarding a lack of standing or locus standi of the Committee, Hedigan J. engaged in an examination of whether the Committee fulfilled their duty to provide reasons for their decision.
In submissions, Forum Connemara asserted that the SICAP tender may have been a "mixed" tender with characteristics of both Annex IIA and Annex 11B contracts under Directive 2004/18/EU as implemented into Irish law by SI 329 of 2006. Annex IIB service contracts are considered to have less potential for cross-border trade and are therefore not subject to the full rigours of the Directive and implementing Regulations. Addressing Forum Connemara's assertion that the SICAP tender may have been a "mixed" tender with characteristics of both Annex IIA and Annex IIB contracts, Hedigan J. was satisfied that the SICAP tender was an Annex IIB contract as the opening page of the Invitation to Tender specifically identified the contract as such. As an Annex IIB contract, the tender was not subject to the specific reason-giving obligations under Article 41 of the Directive.
Noting a general requirement to give reasons also existed, Hedigan J. held that the Committee's letter of notification to Connemara Forum dated 2 March 2015 sufficiently discharged the Committee's general duty and specific obligations to provide reasons for their decision. In their letter, the Committee "went beyond any general requirement to give reasons" by identifying a number of shortcomings in Connemara Forum's tender under the points action plan, staffing resources, performance management, validated programme of learning and networking structures with key stakeholders. The letter also included details of the scores where the successful tenderer equalled or exceeded the applicant.
The Court held that it could not be ascertained from either Connemara Forum's letter in response to the Committee's letter of notification or in the pleadings in the application for judicial review that the organisation did not fully comprehend the reasons underlying the Committee's decision.
Hedigan J also noted that the issue of proportionality did not arise in the case as the Committee was not in a position to "change the parameters of what is a national programme". Similarly, submissions raised by Connemara Forum that the lack of reasons furnished in the letter of notification rendered the decision irrational were dismissed as the Court found that, even applying a “clear error” test, no real case for such a finding was present.
All reliefs sought by Connemara Forum were refused.
Analysis
The case marks one of the first discussions of the duty to provide reasons following the RPS v. Kildare County Council case. The Court considered that the reason-giving obligation in Article 41 of Directive 2004/18/EU did not apply to Annex IIB service contracts and that the Committee went "far beyond" any general requirement to give reasons. The case also demonstrates the importance of initiating claims within the tight time limits under the Remedies Regulations as Forum Connemara's grounds were significantly curtailed following the Court of Appeal decision to strike out grounds relating to the initial decision to designate one SICAP service provider to the Co. Galway region. The case therefore primarily concerned the adequacy of the reasons provided by the Committee.
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Date Published: 1 September 2016