McLaughlin and Harvey limited -v- Department of finance and Personnel
| Jurisdiction | Northern Ireland |
| Judge | Deeny J |
| Judgment Date | 2008 |
| Neutral Citation | [2008] NIQB 91 |
| Court | Queen's Bench Division (Northern Ireland) |
| Date | 11 September 2008 |
1
Neutral Citation no.: [2008] NIQB 91 FINAL Ref:
DEE7249
Judgment: approved by the Court for handing down Delivered:
11/09/08
(subject to editorial corrections)*
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
_______
QUEEN’S BENCH DIVISION
________
ACTION 2008 NO. 5070
________
McLAUGHLIN AND HARVEY LIMITED
Plaintiff;
-v-
DEPARTMENT OF FINANCE AND PERSONNEL
[No. 2]
Defendant.
________
DEENY J
[1] This case raises interesting issues regarding transparency and the
disclosure of award criteria and weightings in the developing field of public
procurement law. The plaintiff’s claim arises in this way. The Central
Procurement Directorate (“CPD”) is a Directorate of the defendant
department. In affidavits before the court officials of the CPD explain with
reference to a series of reports including one by Lord Levene, as he now is, of
1995, how Government thinking with regard to construction procurement has
evolved over the last 15 years. A view has been formed that competitive
tenders awarded to the tenderer with the lowest price do not, in fact, always
yield the best value for the public. The Government now favours a
“partnering approach rather than confrontational relationships which have
often marred the successful delivery of projects. It is based on contractors and
their design teams working together in Integrated Supply Teams with the
Client.” (Stewart Heaney first affidavit).
2
[2] An example of that approach is the current proposed Framework
Agreement. This process will select five contractors to lead integrated supply
teams to undertake projects, as the need arises, by means of a secondary
competition among those appointed to the Framework Agreement. The
process is conducted by the CPD. This particular Framework Agreement
relates to a number of construction contracts which it is hoped to implement
over the next four years at a cost of £500-£800m. They include urban
regeneration, further education, arts and sports developments. It is relevant
to note that they do not cover schools, health or roads ie. that a contractor
excluded from this Framework Agreement may well still be eligible for much
other public procurement work over the coming four years. These
developments in public procurement have clearly not been confined to the
United Kingdom as they are recognised under the relevant current European
Directive 2004/18/EC, to which I will refer in due course.
[3] In this case a contract notice was published, as required, in the official
journal of the European Union on 15 March 2007. The primary tender
documents were issued on 24 April 2007. The tender of the plaintiff was
submitted on 5 October 2007. On 17 December 2007 they were informed that
they had been unsuccessful. They sought a debrief meeting as they were
entitled to but for various reasons this did not take place until 10 January.
The plaintiff would say that it was only on this occasion that they realised and
learnt that the defendant through the CPD had marked the plaintiff’s tenders
alongside all the other tenders with a particular methodology that had not
been disclosed in advance to the plaintiff. The heart of the case is the
plaintiff’s attack on the very fact of that methodology which it alleges
constitutes new and undisclosed criteria relied on by the defendant in breach
of the European requirement of transparency and in a way that was unfair to
the plaintiff. As the plaintiff came sixth in the competition only 1% behind
the contractors placed fifth and fourth even a modest improvement in its
marking by a proper approach, it contends, would materially affect the
outcome. The defendant denies these are new criteria but says they are a
perfectly legitimate working out in detail of the material which had been
included in the tender documents. Furthermore, in an analysis furnished to
the court on the third day of the hearing, the defendant’s expert drew
attention to the fact that the plaintiff’s solicitors had furnished the defendant
with the first draft of their tender. He was able to point out that it anticipated
correctly the very points which the plaintiff’s expert was now saying were
unexpected and not foreseeable. In a number of instances, however, these
matters were deleted between the first and second tenders. For reasons that
will appear I do not consider it necessary for me to go much further into the
detail of the argument on the merits between the parties.
[4] The plaintiff sought an interlocutory injunction restraining the
defendant from proceeding with the implementation of the Framework
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