Deane Public Works Ltd v Northern Ireland Water Ltd
| Jurisdiction | Northern Ireland |
| Judge | Morgan LCJ |
| Judgment Date | 28 August 2009 |
| Neutral Citation | [2009] NICh 8 |
| Date | 28 August 2009 |
| Court | Chancery Division (Northern Ireland) |
| Year | 2009 |
1
Neutral Citation No: [2009] NICh 8 Ref:
MOR7606
Judgment: approved by the Court for handing down Delivered:
28/08/09
(subject to editorial corrections)*
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
_________
CHANCERY DIVISION
_________
BETWEEN:
DEANE PUBLIC WORKS LTD
Plaintiff;
And
NORTHERN IRELAND WATER LTD
Defendant.
________
MORGAN LCJ
[1] The plaintiff is a civil engineering company whose registered office is
in Irvinestown, County Fermanagh. Its activities include the carrying out of
works in connection with water industry infrastructure and treatment works.
It operates in Northern Ireland and the border counties of the Republic of
Ireland.
[2] The defendant is a company whose predecessor in title was the Water
Service, an executive agency within the Northern Ireland Department for
Regional Development (DRD). The defendant was established as a
government-owned company with DRD holding the entire shareholding. It is
the sole public water and sewerage undertaker for Northern Ireland. The
defendant is a utility for the purposes of the Utilities Contracts Regulations
2006 which implement in particular Directive 2004/17/EC coordinating the
2
procurement procedures of entities operating in the water, energy, transport
and postal services sectors.
[3] This claim arises as a result of a procurement exercise conducted by the
defendant for the provision of a new ring sewer on the western extent of
Omagh. The contract is the Brookmount Street -- Hunters Crescent Sewer
Replacement Works Contract (Brookmount Contract) which had a value of
£2.5 million. The significance of that figure lies in the fact that the threshold
for the value of contracts to which the relevant Directive or Regulations apply
is in excess of £3.5 million and, therefore, none of the legal obligations which
arise from those provisions apply in this case.
[4] At the commencement of the hearing the parties provided a statement
of agreed facts which I now set out in full to explain much of the relevant
background to this case.
“1. On 20 July 2007 the Defendant published on its
website notice of an invitation to tender for inclusion
on a restricted list as a prequalification for tendering
for the Brookmount Road- Hunter Crescent Sewer
Replacement Project. On 25 July 2007 the Defendant
published notice of the invitation to tender in the
Belfast Telegraph, the Irish News and the Newsletter.
The Plaintiff subsequently requested and was sent the
pre-qualification questionnaire (“PQQ”).
2. At subsection B9 of the PQQ, entitled
“Experience”, it stated:
“Please provide details of projects which best
demonstrate your ability to undertake the
scope of works outlined in (section B3)
‘description of the proposed works’. These
projects must have been completed within
the last 5 years or currently be substantially
complete. The Lead Contractor is required to
give a summary of three projects”
3. On 27 August 2007 a telephone conversation
took place between Manus O’Kane of the Plaintiff and
Nigel Tracey of Jacobs UK (representing the
Defendant). Manus O’Kane identified himself only as
being a “representative” of the Plaintiff. During this
conversation Mr O’Kane enquired as to whether a
contract outside of the specified 5 year period that
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