Henry Bros (Magherafelt) Ltd, F B McKee & Co Ltd and Desmond Scott and Philip Ewing T/A Woodvale Construction CO LTD adn Department of Education for Northern Ireland
| Jurisdiction | Northern Ireland |
| Judge | Coghlin J |
| Judgment Date | 03 October 2008 |
| Neutral Citation | [2008] NIQB 105 |
| Date | 03 October 2008 |
| Court | Queen's Bench Division (Northern Ireland) |
| Year | 2008 |
Neutral Citation No.: [2008] NIQB 105 Ref:
COG7237
Judgment: approved by the Court for handing down Delivered:
03/10/08
(subject to editorial corrections)
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
QUEEN’S BENCH DIVISION
________
BETWEEN:
HENRY BROS (MAGHERAFELT) LTD, F B McKEE & CO LTD AND
DESMOND SCOTT AND PHILIP EWING T/A WOODVALE
CONSTRUCTION CO LTD
Plaintiffs;
and
DEPARTMENT OF EDUCATION FOR NORTHERN IRELAND
[N0. 2]
Defendant.
________
COGHLIN J
[1] In this case the first-named plaintiff, a long established firm of building
contractors, formed a consortium with the second, third and fourth-named
plaintiffs for the purpose of submitting a tender for inclusion within the terms
of the Northern Ireland Schools Modernisation Framework Agreement (“the
framework agreement”) for the provision of major construction works to be
carried out in furtherance of the Northern Ireland Schools Modernisation
Programme (“NISMP”).
[2] The defendant is the Department of Education for Northern Ireland
(“the Department”) which instituted the NISMP as part of a policy aimed at
reversing the historical under-investment in the schools infrastructure. The
Department estimates that only 25-30% of the schools within the present
schools estate meet the Department’s Building Handbook standards and that
an even smaller percentage could be considered to constitute modern 21st
century education facilities. The Investment Strategy for Northern Ireland
2005-2015 (“ISNI”), published on 14 December 2005, set out ambitious plans
for new investment in the schools estate with a view to the creation of a
modern infrastructure for schools and youth facilities. On 25 October 2007 a
further draft investment strategy was published for consultation allocating
2
some £714.5M to Schools and Youth Services over the period 2008/9 to
2010/11.
[3] The plaintiffs have been excluded by the Department from the
Framework Agreement and they allege that, as a consequence, the
department has acted in breach of contract, in breach of the Public Contracts
Regulations 2006 (“the Regulations”) and in breach of the general principles
of EC Law.
[4] Mr Michael Bowsher QC and Mr Peter Girvan appeared on behalf of
the plaintiffs while the Department was represented by Mr Stephen Shaw QC
and Mr David McMillan. I am indebted to both sets of counsel for their
carefully prepared and helpful oral and written submissions as well as their
extensive research of the relevant legal principles and authorities.
The Factual Background
[5] The Central Procurement Directorate (“CPD”) is concerned with the
development of policy and best practice in relation to procurement for the
benefit of the public sector in Northern Ireland. The CPD also serves as a
central purchasing body and provides the public sector with policy advice
and construction related support services including professional, advisory
and project management expertise. It has also been closely involved in
developing standards and practices to be applied in procurement
competitions. Among its other functions CPD has been active in advising the
Government as to the best procurement strategy to adopt in order to obtain
best value for money. In doing so it has been instrumental in promoting the
Department’s contract strategy based on the establishment of framework
agreements provided for under the Regulations. Once established, such
framework agreements are intended to facilitate the appointment of teams of
designers and contractors to undertake projects, as the need arises, by means
of a secondary competition between those appointed in accordance with the
framework agreement. This allows the preliminary work in procurement to
be carried out in one exercise which then provides a contracting authority
with a pool of contractors who have been assessed as best qualified to carry
out individual contracts that are put out to tender. In the context of this
litigation CPD acted as the agent of the Department in relation to the NISMP
and was responsible for the issue and receipt of all correspondence with the
candidates relating to the framework agreement. The Department was
advised with regard to the structure and implementation of the competition
to identify those who should come within the framework agreement by
Messrs E C Harris at the Pre-Qualification Questionnaire (“PQQ”) stage and
by Chandler KBS as sub consultants to E C Harris thereafter.
[6] The procedures followed by the Department and its consultants appear
to have been as follows:
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