Somague Engenharia S.A. & anor v-v Transport Infrastructure Ireland

Factual and Procedural Background

These proceedings concern a judicial review of the tendering process for a public contract involving the design and construction of a 5.6 km extension of a light rail system in The City. The Applicants, a joint venture established for tendering purposes, placed second in the competition and allege that the evaluation of tender documentation was flawed by serious errors and breaches of public procurement rules. They contend that despite offering a significantly lower price than the winning bidder, they lost the contract due to these errors. The contract has already been awarded to the preferred bidder, and no suspension of the award has been sought. The Applicants seek damages.

The application is brought pursuant to Order 84A of the Rules of the Superior Courts as amended. The current judgment addresses an application by the Applicants to cross-examine an evaluator involved in the tender evaluation process, Mr. Corsi, on his affidavits, pursuant to Order 41 Rule 1 and/or the inherent jurisdiction of the court. The Respondent contests this application.

Legal Issues Presented

1. Whether the Applicants are entitled to cross-examine Mr. Corsi on his affidavit evidence in the judicial review of a public procurement decision.
2. The appropriate test and discretion to be applied by the court in permitting cross-examination in judicial review proceedings governed by public procurement law and European Community principles.
3. The extent to which transparency and fairness under EU procurement law require a higher degree of scrutiny, including cross-examination, in judicial review of procurement decisions.
4. The impact of delay in seeking cross-examination on the court’s discretion to permit such examination.

Arguments of the Parties

Applicants' Arguments

• The evaluation of the tender was flawed by the application of undisclosed or impermissible criteria, misapplication of stated award criteria, manifest errors in assessing a key sub-criterion related to the tie-in with an existing rail line, and consideration of irrelevant matters.
• Mr. Corsi’s working notes reveal a methodology that differs from the published tender criteria, warranting cross-examination to clarify and challenge his approach.
• Cross-examination is necessary to resolve disputes about the meaning and role of Mr. Corsi’s notes in the evaluation process, particularly given inconsistencies between his notes and affidavits of other witnesses.
• Transparency in the evaluation process, a principle mandated by EU law, requires that the court scrutinise the evaluators’ methodologies closely, which justifies permitting cross-examination.
• Alleged delay in seeking cross-examination should be excused as the Respondent delayed responding to concerns raised in affidavits, and the need for cross-examination only crystallised after receipt of later affidavits.

Respondent's Arguments

• Cross-examination is not necessary or appropriate absent a material conflict of fact on affidavit relevant to the issues before the court.
• Mr. Corsi’s initial notes were “working notes” that did not directly influence the final scoring; the final team score is the determinative factor in the award and is not challenged.
• Allowing cross-examination would cause delay and undermine the expeditious resolution required in procurement challenges under EU law.
• The Rules of the Superior Courts and the judicial review procedure do not preclude cross-examination but it should only be permitted where strictly necessary to resolve factual conflicts.
• The Applicants delayed unreasonably in seeking cross-examination, having known of the notes since May 2015 but only requesting cross-examination in July 2015, which should weigh against granting it.
• Transparency required by EU law is satisfied by the disclosure of documents and affidavit evidence without the need for oral evidence or cross-examination.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by outlining the legal framework governing public procurement under the Utilities Directive and its transposition into domestic law, highlighting principles of non-discrimination, transparency, proportionality, objectivity, and effective judicial protection. It noted that judicial review in procurement cases may require a more searching standard than traditional domestic review to ensure effective remedies consistent with EU law.

The court then addressed the application to cross-examine Mr. Corsi, an evaluator whose working notes revealed a methodology that the Applicants allege diverged from the published tender criteria. Although the Respondent contended that these notes were merely "working notes" and did not affect the final scoring, the court found that the Applicants had identified a genuine dispute about the meaning, role, and correctness of Mr. Corsi’s evaluation approach, which could not be resolved on affidavit evidence alone.

The court applied the test from Director of Corporate Enforcement v. Seymour, requiring (1) a material conflict of fact or disputed interpretation relevant to the issues before the court, and (2) that cross-examination be necessary for the just disposal of the case. It accepted that the Applicants’ challenge to the evaluation methodology and the discrepancies between affidavits and notes constituted a sufficient issue to warrant cross-examination.

Regarding delay, the court acknowledged the importance of expedition in procurement judicial reviews but found that the delay was largely attributable to the Respondent’s late affidavit response, and that the Applicants’ request for cross-examination was made promptly after receiving that affidavit. The court concluded that delay did not justify refusal of the application.

The court emphasized the importance of transparency as mandated by EU law, stating that transparency in procurement reviews may require enhanced scrutiny of evaluators’ methodologies, including cross-examination, to ensure fairness and proper judicial oversight.

The court also recognized the procedural requirement that cross-examination be confined to pleaded issues and identified a narrow scope for the cross-examination focused on the methodology disclosed in Mr. Corsi’s working notes, the tests he applied, and how these relate to the disclosed competition criteria.

Holding and Implications

The court GRANTED the Applicants’ application to cross-examine Mr. Corsi on his affidavit evidence, subject to the limitation that the cross-examination be confined to:

• The methodology disclosed in Mr. Corsi’s working notes.
• The tests applied by Mr. Corsi in evaluating the tender.
• The relationship between his working notes and the disclosed competition criteria.

The immediate implication is that the Applicants will be permitted to test and challenge the evaluation approach of a key evaluator, potentially shedding light on alleged procedural irregularities in the tender evaluation. The court’s decision underscores the importance of transparency and effective judicial scrutiny in procurement reviews under EU law. No new precedent was set beyond the application of established principles concerning cross-examination in judicial review and procurement law.