High Court rejects challenge to DIT contract award

A High Court judge has rejected a challenge to the way a €200 million contract was awarded for the Dublin Institute of Technology (DIT) campus at Grangegorman in Dublin.

Mr Justice Robert Haughton dismissed the challenge by an unsuccessful bidder, Netherlands-based joint venture BAM PPP PGGM Infrastructure Cooperatie UA, over the awarding of the contract to the Eriugena consortium.

The project involves building 50,000sq m of teaching space in two principal buildings to be called the Central Quad and East Quad at the former St Brendan’s psychiatric hospital site. Some 10,000 students housed in 15 existing DIT schools will move there.

In its action, BAM sought to set aside the decision of National Treasury Management Agency (NTMA) and the Minister for Education and Skills awarding the contract to Eriugena.

Deadline

The defendants denied BAM’s claim there was no lawful basis to exclude it (BAM) from the process because Eriugena did not submit its tender before the specified deadline, 5pm on November 28th, 2014.

The challenge was brought under European Communities (Public Authorities Contracts Review Procedure) Regulations 2010.

BAM’s central assertion in the case was the NTMA was not entitled to accept a tender, under invitation to tender (ITN) provisions, received in whole or in part after the deadline.

Eriugena and a third qualifying tenderer, Kajima, submitted part of their tenders shortly after the deadline because of IT difficulties. It was the first time only electronic tenders were used in a public procurement project.

In his 160-page judgment, Mr Justice Haughton found the NTMA had a discretion to accept documents/files submitted after the tender deadline and to treat a tender as compliant where the lateness was due to clerical or administrative error or omission.

Alternatively, the NTMA had a discretion under the general law to accept late tender documents, he held.

Equal treatment

The exercise of such discretion, whether under the ITN or general law, was subject to the NTMA not infringing the general principles of equal treatment, non-discrimination, proportionality and transparency, he said.

While the judge found the NTMA had misdirected itself in law, in considering it had a discretion under Section 4 of the ITN, he ruled it did not misdirect itself in law “or at any rate did not make any manifest error in considering it had a discretion to accept Eriugena’s late documents/files”.

He also ruled NTMA had valid reasons for exercising its discretion in favour of Eriugena and the grounds relied on by it did not constitute any error, or manifest error, in the exercise of its functions under the ITN.

The NTMA had also not breached the Procurement Directive, the procurement regulations, or the general law, he held.

BAM said it was disappointed with the decision and would take time to review it.