Easy Coach Ltd v Department for Regional Development
| Jurisdiction | Northern Ireland |
| Judge | McCloskey J |
| Judgment Date | 28 February 2012 |
| Neutral Citation | [2012] NIQB 10 |
| Court | Queen's Bench Division (Northern Ireland) |
| Date | 28 February 2012 |
1
Neutral Citation No. [2012] NIQB 10 Ref: McCL8383
Judgment: approved by the Court for handing down Delivered: 28/02/2012
(subject to editorial corrections)*
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
______
QUEEN’S BENCH DIVISION (COMMERCIAL LIST)
________
BETWEEN:
EASYCOACH LIMITED
Plaintiff:
and
DEPARTMENT FOR REGIONAL DEVELOPMENT
Defendant:
__________
McCLOSKEY J
I INTRODUCTION
[1] This litigation arises out of a contract procurement exercise
undertaken by the Department for Regional Development (“the Department”)
culminating in the rejection of the Plaintiff’s tender and the enunciation of a
decision that the contracts being procured, which were for the provision of
certain personal transport services, would be awarded to two commercial
competitors (Quinns' Coach Hire Limited – hereinafter “Quinns” - and Out
and About Enterprises Limited – hereinafter “Out and About”). This was
what is conventionally described as a public procurement exercise.
II THE PROCUREMENT PROCESS IN OUTLINE
[2] The contract procurement documents make clear that the contractual
service being procured was designed to offer pre-bookable transport for
2
persons who, due to disability or age, find public transport difficult or
impossible to use. The stated aims of the programme were to target social
need and to complement the work of existing service providers involved in
programmes designed to promote social inclusion for people with reduced
mobility. This service has been in existence in various guises for
approximately two decades. The methodology adopted was to procure this
service by dividing Northern Ireland into four separate geographical areas. It
is undisputed that, within the ambit of Directive 2004/18/EC, this contract
procurement exercise was conducted under the so-called “open” procedure.
The exercise of evaluating tenders was broken down into three separate
stages:
(a) A preliminary stage, whereby the compliance of tenders with
the specified mandatory requirements was determined.
(b) A second stage, at which the application of the selection criteria
was made, entailing a determination of whether tenderers had
demonstrated minimum standards of technical and professional
ability in certain specified respects.
(c) A final stage, entailing the application of award criteria and
identification of the successful bidder/s. The Department’s
affidavit evidence includes the following material averments:
“The selection criteria were formulated to ensure that
only tenderers who demonstrated the ability to
deliver the services would have their tenders
considered at the award stage. It was decided that
the assessment of selection criteria should be pass/fail
and it was deemed necessary that all the selection
criteria should be passed for a tenderer to be
considered suitable to progress to the award stage …
The award criterion was the most economically
advantageous tender which involved consideration of
a range of qualitative issues and a cost component …
The primary award criteria were individually
weighted, with sub criteria identified and separately
weighted …
A weight of 30% [was] attributed to cost and 70%
[was] attributed to … [the others]”.
The evidence establishes that stages (a) and (b) merged to form a single,
combined stage.
3
[3] It is clear from the “Instructions to Tenderers” that there were four
separate selection criteria, the function whereof was to ascertain whether the
bidder could attain certain minimum standards. There were described as (a)
providing transport services, (b) operating a transport company, (c)
providing transport services to people with disabilities and (d) managing a
booking centre, including scheduling customer journeys. Each of the four
selection criteria focussed on the period of the previous three years. Every
bidder was required, with reference to each of the four criteria, to “… provide
details of a relevant project within the last three years which demonstrates your
ability to successfully [perform or provide the specified service]”.This was
followed by the specification of each of the four selection criteria/minimum
standards, duly augmented. Thus, for example, the first selection criterion
required bidders to provide, with reference to a relevant project within the
previous three years, particulars of matters such as the customer organisation,
project value, duration, key personnel roles and delivery of project objectives
on time and within budget. The outworkings of all four selection criteria
were couched in comparable, though not identical, terms. Stated succinctly,
the selection criteria focussed on the demonstrable previous experience,
competence and expertise of bidders. As regards the third and final stage of
the process, there was a total of seven award criteria: that of contract price
accounted for 30% of the available marks whereas, of the remaining six, each
was accorded a variety of percentages individually, representing the balance
of 70%.
[4] The decisions under challenge were communicated to the Plaintiff by
letter dated 11th April 2011 which stated, inter alia:
“… your tender has not been successful. DRD
intends to enter into contracts for the provision of the
above services as follows:
•
Northern Contract Area – Quinn’s Coach
Hire
•
Eastern Contract Area – Quinn’s Coach
Hire
•
Southern Contract Area – Quinn’s Coach
Hire
•
Western Contract Area – Out and About
Enterprises”.
This letter incorporated a table of scores which showed that the Plaintiff had
been ranked third in respect of all four geographical contract areas. In each
instance, the winning bidder’s score was substantially higher than that
allocated to the Plaintiff. The evidence includes four separate “Debrief”
documents. Each of these details the scores allocated to the Plaintiff in
respect of every contract award criterion and sub criterion, with
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