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

Factual and Procedural Background

These proceedings concern a judicial review of the award of a public contract for the construction of an approximately 5.6 km extension to a light railway system in a major city. The applicants, a joint venture formed by two civil engineering companies, challenged the tender competition on grounds of serious errors and breaches of public procurement rules. They came second in the competition, with the winning tender submitted by another joint venture between an Irish and a Portuguese construction company.

The contracting authority, originally the Railway Procurement Agency (RPA), later transferred to Transport Infrastructure Ireland, invited tenders through a public contract notice published in the Official Journal of the European Union. The contract was valued at around one hundred million euros. The tender process involved prequalification questionnaires, issuance of Conditions of Tendering, and evaluation by an experienced team. The applicants submitted their tender in September 2014 and were notified of the competition result in December 2014. They sought debriefings and subsequently initiated judicial review proceedings under Order 84A of the Rules of the Superior Courts.

The substantive claim concerns alleged breaches of multiple European and national public procurement regulations and principles, including equality, transparency, and non-discrimination. The court previously dealt with an application related to cross-examination of a respondent’s affidavit deponent. This judgment addresses the substantive issues raised in the review.

Legal Issues Presented

1. Whether the respondent applied impermissible or undisclosed criteria in the qualitative assessment of tenders, particularly concerning the Red Line tie-in method statement.
2. Whether the respondent wrongly applied, or failed to apply, certain identified and applicable criteria in the tender evaluation process.
3. Whether the respondent breached the rules governing the negotiated procedure and the Most Economically Advantageous Tender (MEAT) process by failing to engage in post-tender negotiations.

Arguments of the Parties

Applicants' Arguments

• The applicants contended their tender was significantly lower in price than the winning bid but lost due to errors and breaches by the respondent in the procurement process.
• They argued that the respondent applied impermissible and undisclosed sub-criteria, especially in evaluating the Red Line tie-in method statement, including undue emphasis on track geometry and construction methodology not disclosed in tender documents.
• They claimed the respondent failed to properly apply the qualitative criteria in six out of seven sub-criteria, resulting in unjustified lower scores.
• The applicants asserted that the respondent breached the negotiated procedure rules by not engaging in post-tender negotiations despite the applicants having the lowest price and a close score to the winning bidder.
• They challenged specific evaluation decisions, such as deductions for proposed fencing type, use of temporary traffic lights, and programme submissions.

Respondent's Arguments

• The respondent maintained that the evaluation process was conducted in accordance with the Conditions of Tendering and applicable procurement regulations.
• It argued that the evaluation team properly applied the disclosed criteria and that personal notes or matrices used by evaluators were internal tools not constituting undisclosed sub-criteria.
• The respondent asserted that no manifest error occurred in awarding marks, and that differences in scoring reflected considered expert judgment.
• It contended that the negotiated procedure allowed discretion not to enter negotiations and that the decision not to negotiate with the applicants was neither unlawful nor irrational.
• The respondent highlighted that the evaluation involved a team consensus and that the applicants’ complaints about specific scoring were unfounded or reflected professional assessments rather than errors.

Table of Precedents Cited

Court's Reasoning and Analysis

The court undertook a detailed review of the procurement process, focusing on whether the respondent breached principles of equality, transparency, and objectivity as required by European and national law. It considered the disclosed Conditions of Tendering and the evaluation criteria, including price and qualitative factors subdivided into project management and methodology sub-criteria.

Regarding the evaluation, the court found that the respondent applied the tender criteria as disclosed, and the evaluation team, including experts, engaged in a thorough, analytical, and consensus-based assessment. The personal notes and matrices used by individual evaluators were internal tools for understanding and did not amount to undisclosed sub-criteria. The court accepted that some degree of expert judgment and qualitative assessment was necessary and consistent with the procurement framework.

The court addressed specific complaints about scoring deductions, such as the use of Heras fencing, temporary traffic lights, and programme submissions, concluding these were supported by evidential and expert considerations without manifest error. It found that the applicants’ tender contained genuine deficiencies and errors, including in the Red Line tie-in construction methodology, which justified the lower scores.

On the issue of the negotiated procedure, the court held that the contracting authority had a discretion whether or not to engage in post-tender negotiations. The Conditions of Tendering did not impose a mandatory obligation to negotiate, and the respondent’s decision not to negotiate was rational and lawful, given concerns about maintaining transparency and equality among all tenderers.

Throughout, the court applied the manifest error standard, showing deference to the contracting authority’s expert evaluations unless clear breaches of law or procedure were demonstrated. No such breaches were found.

Holding and Implications

The court REFUSED THE APPLICANTS' CLAIMS and dismissed the application for judicial review.

The direct effect is that the contract award to the winning bidder stands, and the applicants are not entitled to relief. The court’s decision does not establish new precedent but reaffirms established principles of procurement law, including the necessity of transparency, equality, and the permissible exercise of discretion by contracting authorities in negotiated procedures.