A waste of time!

13 June 2013

Celia Worthington of Worthingtons Solicitors Belfast reviews a recent High Court decision on the Tender Process

The Belfast High Court recently dismissed a challenge to a tender process run by Northern Ireland Waste Limited for the award of a contract for sludge management services.

Irish Waste Services Limited claimed that Northern Ireland Water had failed to conduct a tender process in accordance with the established principles of fairness, non discrimination and transparency and in breach of the 2006 Utilities Contract Regulations. This was not the first time the matter had been before the High Court. In 2010 the same court had dismissed the claim by Irish Waste for injunctive relief and damages on a delay point. That decision had been successfully appealed following case law which developed the timing issue for procurement challenges in a manner favourable to Irish Waste's claim. The matter was accordingly remitted back to the High Court to rule on the substantive issues. In 2009 NI Water sent out tenders to 7 applicants. The process was conducted using the Negotiated Procedures provided for in the 2006 regulations and the 2004 Utilities Directive. The tenderers were aware that bidders were required to pass a minimum quality threshold. Irish Waste and others failed at this first hurdle and accordingly the bid of Irish Waste was not taken forward to the price evaluation stage. Irish Waste challenged the process on a number of grounds; the criteria for the award was not clarified sufficiently, that some of the criteria was linked to ability to perform rather than most economically advantageous tender, that the relevant weightings were not stated and, most importantly to them, that the tenderers were assessed by a two staged process.

The Court did not uphold any of its grounds for challenge. It found that the criteria was sufficiently disclosed by the use of a number of questions; there was no need to state the word "criteria"; that at bid evaluation stage a utility must be able to have regard to any relevant matter concerning performance of the contract; that in the quality submission the elements were subject to a detailed breakdown allowing bidders to identify the responses which will generate greater marks in the assessment and that there is nothing objectionable about a contracting authority setting minimum standards for quality which must be attained prior to the evaluation of the price of the bid.

Whilst this case was a victory for the public sector procurer it illustrates yet again the awareness on the part of bidders of their right of redress and the importance for procurers to ensure that their documentation and process complies with procurement legislation.

Celia Worthington is the Senior Partner in the Commercial department of Worthingtons Solicitors, Belfast.  Submit any queries about this article in the enquiry form below and a member of our Commercial team will be happy to respond.

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