Wednesday, November 23, 2016
Forum Connemara Limited v Galway County Local Community Development Committee  IEHC 493, Judgment of Mr Justice Hedigan of 10 August 2016
Galway County Local Community Development Committee (the “Respondent”) is responsible for co-ordinating, managing and overseeing the implementation of local and community development programmes which includes the social inclusion and community activation programme (SICAP). In September 2014, the Respondent made the decision that there should be only one service provider for SICAP for the county of Galway and it conducted a tender process for the purpose of awarding a contract for implementing services for SICAP to a single service provider. Forum Connemara Limited (the “Applicant”) along with another service provider (Galway Rural Development Company Limited) had previously administered SICAP. In March 2015, the Applicant was notified that it was unsuccessful in this tender process and that Galway Rural Development Company Limited had won the contract. On foot of this decision, the Applicant initiated proceedings seeking a number of reliefs.
In addition to the application to quash the decision of the Respondent to award the contract to Galway Rural Development Company Limited, the Applicant also sought to quash the Respondent’s decision of September 2014 that there should only be one service provider or programme implementer for SICAP. This claim relating to the decision of September 2014 was ultimately found to be time-barred by the Court of Appeal. On account of the decision of the Court of Appeal, certain reliefs and grounds raised in the Applicant’s pleadings fell away and the proceedings before Mr Justice Hedigan solely related to a review of the Respondent’s decision to award the contract to Galway Rural Development Company Limited.
The core argument put forward by the Applicant in relation to the decision of March 2015 was that the Respondent failed to provide adequate and intelligible reasons for its decision.
The Court held that as this was an Annex IIB contract, the tender was not subject to the specific reason-giving obligations under Article 41 of the 2004 Classics Directive. The Court noted however that there is also a general requirement to give reasons, and found that the Respondent’s letter of notification sufficiently discharged this duty. The Court found that the notification provided to the Respondent not only described the reasons for its decision but explained in detail why the successful tender was considered a better one. The Court also found that the reasons provided were specific enough to meet the higher requirements of Regulation 49(3) of S.I 329/2006 (which implements Article 41 of the Classic Directive) even though that higher standard was not found to apply.
Mr Justice Hedigan refused all the reliefs sought by the Applicant.
The case is one of the first cases before an Irish Court which examines the scope of the duty to give reasons to an unsuccessful tenderer in the context of an award of an Annex IIB contract. Whilst the distinction between Annex IIA and Annex IIB contracts has been abolished under Directive 2014/24/EU, a somewhat similar regime exists for social and other related services to which this decision will be very applicable. It is also of relevance to contracts awarded below EU thresholds.
It will also be interesting to see whether this decision will be relied upon by Contracting Authorities in an attempt to row back from the level of reasons that Mr Justice Humphrey’s ruled was required in RPS Consulting Engineers Ltd. v Kildare County Council & Ors.