An unsuccessful bidder for the Health Service Executive’s (HSE’s) €9.5 million emergency air ambulance service has failed in a High Court challenge to the awarding of the contract.
Sere Holding Ltd, which came eighth and last in the tender process, claimed the contract winner, IAS Medical Ltd, did not satisfy a requirement that each bidder must have a turnover of €4 million for the previous three years in relation to the services for which it was bidding.
Sere brought a High Court challenge seeking, among other things, the setting aside the award of the contract to IAS under the European Communities (Public Authorities’ Contracts) (Review Procedures) Regulations 2010, known as the “Remedies Regulations”.
The case was against the HSE which awarded the contract. IAS was a notice party.
The HSE service requires a provider which transfers patients between the Republic and other countries, mainly the UK.
While air ambulances both inside and outside Ireland are generally provided by the Irish Air Corps and the Irish Coast Guard Services under existing arrangements, they are unable to provide them between 7pm and 7.30am, and 7pm to 8.30am in June, July and August.
On Friday, Mr Justice Michael Twomey ruled IAS did satisfy the selection criteria. However, there remained the issue of whether the HSE “verified” that IAS satisfied the selection criteria.
The judge said he proposed to ask Sere, when it has considered his judgment, whether this “verification issue” needs to be dealt with by the court.
If Sere concludes that it does not need a determination, then there will be a saving of court resources, the judge said. However, if Sere says it would like to have the matter determined, the court will hear from the other parties and give a decision, he said.
He also ordered the parties to engage with each other to see if agreement can be reached regarding all outstanding matters without the need for further court time.
In his judgment, the judge noted that the value of the previous contract, as stated by Sere’s Stanley Edgar, was €7 million over a two-year period. The savings to the HSE from the new contract would be around €4.5 million as the new contract was €9.5 million over four years.
The judge said the key issue in this case, when considering the €4 million turnover requirement, was whether the tender services were restricted to a transfer involving a patient (with a medical team in a specially equipped aircraft), as claimed by Sere or, included the transfer by an plane of organs and of organ retrieval teams, in addition to the transfer of patients, as claimed by the HSE.
Based on its more restrictive interpretation, Sere claimed that any turnover which IAS had in relation to the transfer of organs and the transport of organ retrieval teams, could not be used to enable IAS to satisfy the precondition that it have a €4 million turnover, he said.
The judge found the tender services do not require, in every case, medical personnel, as claimed by Sere. He also found the transport of organs was part of the “service”.
He said the contract, which was awarded by the HSE to IAS in 2021, cannot be invalidated on the basis of Sere’s interpretation of the tender services.
The contract cannot be invalidated on the basis of Sere’s interpretation of the tender services, he ruled.
