The High Court has quashed a decision over the awarding of the contract for the fast ferry passenger service between Tory Island and the mainland.
Liam O’Dubhgháin, trading as WJ Duggan (WJD), an unsuccessful tenderer for the contract, brought proceedings against the Minister for the Gaeltacht claiming a failure to provide reasons for the selection of winning tenderer, Slí Mara Thoraí Teo, which had what was deemed to be the most economically advantageous proposal.
WJD also claimed the Minister applied criteria for the tender process that was not disclosed and/or the decision was vitiated by a manifest error. It was also claimed, among other things, there was a failure to treat all economic operators equally and that WJD was wrongfully discriminated against.
WJD was the successful tenderer in November 2018 and in January 2019. However, WJD was informed in February 2019 that the process had been terminated. A new request for tenders was issued later that month to operate the service from April 2019 to May 2021.
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When Slí Mara Thoraí was announced as the preferred bidder, the Minister wrote to WJD outlining the scores obtained by both service providers and what was said to be “a supporting narrative” in relation to those scores.
WJD requested an extension of the standstill period that comes into operation in public procurement challenges, but this was refused and WJD brought proceedings in April 2019. The Minister opposed the challenge.
In a judgment on Tuesday, Ms Justice Miriam O’Regan granted an order quashing the awarding of the contract to Slí Mara Thoraí. She said she was satisfied that no specific advantages of the winning tender were identified in any one or other of a number of categories used to assess the tenders.
In relation to each such category, this would be sufficient in itself to make a finding that there were insufficient reasons as to the relative advantages of the winning tender, she said.
In the judge’s view, the response in respect of WJD’s vessel was also wanting in respect of adequacy of reasons. It further incorporated an adverse outcome for WJD in respect of passengers with reduced mobility who are unaccompanied, which involves the introduction of an irrelevant consideration, she said.
Given the errors she identified as to reasons and given the potential impact of this in the assessment of up to 60 points, with the current differential between the parties standing at 20 points, she was satisfied to grant an order quashing the decision.
