RPS Consulting Engineers Ltd v Kildare County Council

Factual and Procedural Background

On 21st October 2014, a public authority published a contract notice seeking tenders for engineering consultancy services related to the design and delivery of a road project. The invitation to tender included detailed assessment criteria. The applicant, a consulting engineering company, submitted a request to participate and was successful in qualifying for the next stage with a perfect score. The deadline for completed tenders was 11th March 2015, which the applicant met.

During the process, the public authority changed the marking scheme without notice, replacing a detailed proportional scoring system with a cruder categorical system. This change was not challenged as a ground to quash the award since the proceedings were commenced after the contract was signed.

Four tenders were assessed under the new scheme, with the notice parties awarded the contract as the successful tenderer by joint venture. The applicant was one of the unsuccessful tenderers and had submitted a significantly lower price than the successful tenderer, making qualitative factors determinative.

The applicant received a notification of award decision letter dated 2nd April 2015, which repeated criteria and scores and provided a very limited and vague explanation of why the successful tenderer was qualitatively superior. Similar generic letters were sent to other unsuccessful tenderers.

The applicant requested more detailed feedback and a debrief meeting, which the public authority refused, asserting it had met transparency obligations and would not provide further reasons. The applicant initiated legal proceedings outside the standstill period but within the statutory limitation period seeking relief for the inadequacy of reasons given.

The pleadings included numerous grounds, but the core issue was whether the public authority provided sufficient reasons for its decision.

Legal Issues Presented

1. What level of reasons is required by Irish and EU law when a public authority notifies unsuccessful tenderers of the award decision?
2. Whether the public authority complied with its obligation to provide adequate reasons, including the characteristics and relative advantages of the successful tenderer compared to the applicant.
3. Whether the applicant is entitled to rely directly on EU directives where national regulations may be deficient.
4. Whether the public authority breached its obligations by refusing to provide further reasons upon request.
5. The appropriate remedy for any breach of the obligation to provide adequate reasons.

Arguments of the Parties

Applicant's Arguments

• The applicant contended that the reasons provided were formulaic, generic, and failed to identify specific respects or factual matters supporting the superiority of the successful tenderer.
• The applicant asserted a right under EU law, specifically Directive 2004/18/EC and related regulations, to receive detailed reasons and to have requests for further reasons positively responded to.
• It argued that the inadequacy of reasons prevented it from understanding why it lost, hindered judicial review, and failed to promote transparency, acceptance, and improvement of future bids.
• The applicant challenged the public authority’s refusal to provide a debrief meeting or further detailed reasons.

Respondent's Arguments

• The respondent maintained that the assessment and scoring were conducted appropriately and in accordance with the criteria.
• It argued that the scores alone, combined with the brief reasons provided, satisfied the obligation to give reasons under the applicable regulations.
• The respondent denied any obligation to provide further reasons beyond those given and refused to hold a debrief meeting, citing concerns about restarting limitation periods.
• It contended that the applicant could not rely directly on the EU directives beyond the transposing national regulations.
• The respondent also raised issues of vagueness in the relief sought and delay in commencing proceedings.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by identifying the dual-stage obligation under EU law for awarding authorities to provide reasons: an automatic summary at notification and more detailed reasons upon request. The relevant directives and regulations make clear that reasons must be sufficient to enable the unsuccessful tenderer to understand the decision, assess its validity, and decide whether to challenge it.

The court noted that the 2010 regulations inadequately transpose the right to request further reasons, which is directly conferred by EU law and has direct effect. The public authority’s refusal to respond to the applicant’s request for further reasons was therefore unlawful.

Regarding the level of reasons required, the court distinguished between quantitative and qualitative criteria. Scores alone may suffice for purely quantitative assessments (e.g., price), but where qualitative factors are decisive—especially when the unsuccessful tenderer has a lower price—scores alone are insufficient.

The court relied heavily on EU case law, particularly the Evropaki Dynamiki cases, to establish that reasons must include specific references to facts or matters that substantiate the assessment. General or vague assertions without factual anchoring do not meet the obligation.

In the present case, the court found the reasons to be formulaic, generic, and lacking specific factual detail. The notification letters failed to explain precisely why the applicant lost marks or how the successful tenderer was superior in concrete respects. The court described the reasons as bland, uninformative, and inadequate for judicial review or for the applicant to understand its failure.

The court also criticized the public authority’s refusal to engage constructively with requests for further reasons or a debrief meeting, noting a fundamental misunderstanding of the regulatory framework and the purposes of transparency.

Discretionary arguments based on vagueness of relief or delay were rejected. The court emphasized that the limitation period was complied with and that no significant prejudice to the public authority arose from the timing of the application.

Finally, the court concluded that the public authority breached both the statutory and directly effective EU law obligations to provide adequate reasons and to respond to requests for further reasons.

Holding and Implications

The court granted relief in the form of:

• An order of certiorari quashing the letters refusing to provide further reasons.
• A declaration that the public authority contravened the applicant’s rights under the relevant EU directives and national regulations.
• A mandatory order requiring the public authority, within 15 days, to furnish detailed written reasons including the characteristics and relative advantages of the successful tenderer, specifying the principal specific facts and matters supporting each general assertion.
• The reasons must be confirmed by the officials who assessed the tenders as reflecting their considerations at the time of award, or the public authority must disclose if such confirmation cannot be given.
• The court will retain seisin and adjourn the matter to allow for review of the furnished reasons and resolution of any further issues, including any claims of exceptions to disclosure under EU law.

Implications: The decision underscores the necessity for public authorities to provide meaningful, bespoke reasons to unsuccessful tenderers, particularly where qualitative criteria determine the award and where the unsuccessful tenderer offered a lower price. It confirms the direct effect of EU procurement directives concerning the right to reasons and the obligation to respond to requests for further reasons.

The ruling highlights deficiencies in the national transposition of EU procurement law and suggests improvements to ensure compliance and avoid litigation. It also reinforces transparency and fairness in public procurement, promoting better administrative decision-making and potentially reducing unnecessary court actions.

The remedy granted does not annul the contract award but requires the public authority to comply with its legal obligations regarding reasons, thereby balancing legal certainty with the rights of tenderers.