A company which last year failed to stop the lifting of a suspension on the award of an €800 million contract for the Irish Coast Guard air search and rescue service has brought a new High Court challenge.
CHC Ireland, the current provider of the service, says a decision of the Minister for Transport to modify the contract he awarded to rival Bristow Ireland last year is unlawful and a failure to comply with public procurement law.
CHC currently has other proceedings over the contract progressing through the Commercial Court. Last year, the Minister successfully applied to lift a suspension of the award to Bristow which came into being automatically when those CHC proceedings were issued.
CHC opposed the lifting of the suspension but the matter went as far as the Court of Appeal, which backed a High Court decision to lift it.
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On Monday, CHC’s new proceedings over what it calls the “modified contract” were admitted to the fast-track Commercial Court on consent between the parties. Mr Justice Denis McDonald also joined Bristow as a notice party in the proceedings and approved directions for the progressing of the case.
The current contract held by CHC is due to end next year, with a two-year transition period for Bristow, a subsidiary of the US-based Bristow group, to take over the role.
CHC, one of the largest global operators of rotary wing aircraft, employs 141 people in Ireland and was awarded the current contract in 2012 for 10 years. It has exercised options to extend up to July 2025.
It says the decision of the Minister to approve a modified contract for Bristow is invalid and of no legal effect. This is on grounds including that it is a fundamental/material error of fact and/or law, is irrational and in breach of natural and constitutional justice.
It says the Minister failed to conduct a new procurement procedure for the modified contract which differs materially from the contract awarded to Bristow.
The differences include that Bristow is no longer required to build a new helicopter hangar in Shannon as it had proposed in its original tender. CHC said Bristow’s director of Irish search-and-rescue operations, George Baird, told a staff town hall meeting in the Radisson, Shannon, on February 20th last that it (Bristow) intends to use CHC’s current hangar there.
CHC also claims the modifications mean Bristow is no longer required to operate the service from Shannon Airport as of October 31st next. It further says Bristow’s obligations regarding requisite authorisations to provide the service have been modified.
It also claims Bristow is no longer required to complete the appropriate transfer of personnel who are currently employed by CHC per EU transfer of undertakings obligations.
Any of these modifications would be highly material and would affect both the price potential tenderers would have offered and potentially the number of tenders able to compete for the contract, CHC says. They also undermine the scores awarded in the tender competition, it says.
The case will come back before the court later this month.
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