Kerrigan Sheanon Newman UnLtd Company v Sustainable Energy Authority of Ireland (Approved)

Factual and Procedural Background

In March 2023 Company B published a competitive-dialogue procurement for managing‑agent services (the Competition) for surveys, Building Energy Ratings (BERs) and inspections across multiple schemes, including the Better Energy Warmer Homes scheme. Company A was the incumbent provider. Following the dialogue and an Invitation to Submit Final Tenders, Company C was notified as the successful tenderer by decision dated 14 June 2024 (the Decision). Company A brought judicial review proceedings on 9 July 2024 challenging the Decision. Company A amended its Statement of Grounds twice; the final pleading focused principally on two complaints: (1) that Company B misinterpreted the tender documents by accepting Company C's proposed methodology (the “methodology claim”); and (2) that Company B wrongly concluded Company C's tender was not abnormally low after a Regulation 69 inquiry (the “pricing claim”). The Court (Judge Mulcahy) heard affidavit evidence (some confidential), expert evidence from two experts and submissions. The Court made an interim confidentiality direction concerning parts of the hearing. The judge refused the application for relief and listed the case for final orders.

Legal Issues Presented

1. Whether, properly interpreted by the reasonably well‑informed and normally diligent tenderer, the Statement of Requirements and related tender documents made it impermissible to tender on a methodology combining certain core services (notably pre‑BER assessments and surveys) and/or to propose an “uberisation” pilot (the methodology claim).
2. Whether Company B committed a manifest error in concluding, after conducting a Regulation 69 inquiry, that Company C's tender was not abnormally low (the pricing claim).

Arguments of the Parties

Applicant's Arguments (Company A)

• Company C's tender departed materially from the prescribed methodology by proposing (a) combining of services (in particular combining pre‑BER assessments with surveys in a single visit) and (b) an “uberisation” pilot; Company B therefore accepted a non‑compliant tender.
• If the tender documents could be read to permit combining, then they were insufficiently clear and breached the principles of equal treatment and transparency; any lack of clarity was not remedied in time.
• On pricing, Company C failed to supply a clear contractor/FTE resourcing profile and relied on unachievable productivity assumptions and contingent transformation initiatives, such that Company B's conclusion that the bid was genuine was a manifest error.

Respondent's Arguments (Company B)

• Company C's methodology was consistent with the tender documents and the competitive‑dialogue process; the documents and clarifications (notably Clarifications 76 and 90) expressly permitted combining services (subject to segregation of duties) and encouraged efficiency/continuous improvement.
• Company B performed an appropriate Regulation 69 inquiry, sought detailed breakdowns and confirmations, engaged an external adviser, and the Pricing Evaluation Team concluded Company C had provided satisfactory explanations; the court should intervene only for manifest error.
• Company A's alternative plea of lack of transparency was not pleaded in time and, in any event, would be statute‑barred by the Remedies Regulations.

Notice Party's Arguments (Company C)

• Company C supported Company B's position on methodology and pricing and sought protection for inherently confidential tender information; it did not participate substantively in the hearing except on confidentiality.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court first resolved the procedural dispute concerning confidentiality. It accepted (having applied Gilchrist and related authority) that parts of Company C's tender and the Regulation 69 engagement were inherently confidential and that a pro tem order protecting that confidentiality was justified given the discovery order and the established confidentiality club arrangements.

On the methodology claim the Court applied the established RWIND interpretive approach (SIAC and subsequent authorities). The Court examined the SoR, the ISFT, Schedule 3 (BEWH scheme), the annexes and the contemporaneous clarifications issued during the dialogue. Key analytical steps were:

• Identify whether the SoR or ISFT expressly prohibited combining pre‑BER assessments and surveys or otherwise mandated a specific sequence. The Court found no express prohibition in the core SoR materials; scheme annexes set out separate processes but did not prescribe that combining was impossible.
• Consider the clarifications: Clarification 76 (ITPD stage) and, crucially, Clarification 90 (ISFT stage) expressly stated that surveys and pre‑BER assessments could be combined, subject to segregation of duties, and that combining was at the Managing Agent's discretion. The Court held Clarification 90 formed part of the ISFT and was unambiguous on this point.
• Evaluate Applicant's reliance on the previous procurement and structural/ordering aspects of the SoR. The Court rejected the view that a RWIND tenderer would be expected to consult prior tenders or that the absence of a 2019‑style pricing combination schedule evidenced a prohibition; it found the Applicant's approach excessively legalistic and influenced by incumbent perspective.
• Address Applicant's alternative claim of lack of transparency: the Court held that, even if ambiguity had existed, Company A either knew or ought to have known of it by March 2024 (including when Clarification 90 issued on 25 March 2024) and did not act within the Remedies Regulations time limits; accordingly that alternative was time‑barred.

On the pricing claim the Court applied Regulation 69 (and the two‑stage jurisprudence from Sopra Steria and related cases) and the manifest error standard of review (SIAC, SRCL and White Mountain guidance). Analytical steps included:

• Outline Company B's Regulation 69 process: initial queries to Company C, Company C's explanations (including confirmations that unit rates were bottom‑up and included all costs), further detailed cost breakdowns (direct/indirect labour and non‑labour components), engagement of an external adviser (Kroll), additional queries on resourcing/FTE and a clarification meeting.
• Examine the contested evidential matters: alleged absence of a disclosed gross margin, disputed contractor/FTE profiles, productivity assumptions (hours per task and assumed weeks per year), and the extent to which Company C's tender depended on transformational initiatives (including an “uberisation” pilot).
• Assess expert evidence: the Court summarised conflicts between Expert A (critical of Company C's disclosures and productivity assumptions) and Expert B (supporting that Company B's inquiry produced sufficient information). The Court identified calculation errors and differing assumptions (notably FTE as full‑time employee v. full‑time equivalent and whether averages were over year one or contract lifetime).
• Apply the manifest error test: the Court concluded that Company B's inquiry, the information obtained and the PET/Kroll review provided a reasonable basis for concluding the tender was not abnormally low. The Court found no clear, obvious error rendering Company B's conclusion implausible. Specific findings included that omission of a gross margin figure did not by itself fatally undermine Company B's assessment; Company C had explained inclusion of contractor costs in unit rates; productivity calculations relied on different plausible assumptions (e.g. FTE as notional 52‑week equivalent) and Company C’s transformational initiatives were permissible bases for efficiency assumptions and not shown to render the tender price contingent on their success.

Holding and Implications

APPLICATION FOR JUDICIAL REVIEW REFUSED

Holding: The Court refused Company A's application for relief by way of judicial review challenging Company B's award of the Contract to Company C.

Implications: The direct effect is that Company A's challenge was dismissed and no relief was granted. The judgment endorses Company B's interpretation of the tender documents (including that combining specified core services was permissible) and affirms that Company B's Regulation 69 inquiry and conclusion that Company C's tender was not abnormally low did not involve a manifest error. The opinion records that final orders will be made at a subsequent listing; the Court did not identify that a new binding precedent was created beyond application of existing jurisprudence on interpretation, confidentiality and Regulation 69 review.