The challenges of public procurement law have come into sharp focus in recent times in Northern Ireland, as a number of high-profile projects (including public-private partnership projects) have become the subject of judicial scrutiny. Several recent decisions of the Northern Ireland High Court (including those at interlocutory stage) have provided valuable insights into the difficulties awarding authorities can face during the tendering process and also into the thinking of the courts in applying relevant procurement law principles.
In Natural World Products v ARC 21, ACR 21, a consortium of public authorities, sought to award a contract for the provision of organic waste services which included the construction of at least one compaction waste facility. The contract was put out to tender and the plaintiff bid accordingly. However, it was unsuccessful and subsequently sought to challenge the decision of the authority on the grounds that it was unlawful and in breach of the Public Service Contracts Regulations 1993 (now superseded by the Public Contracts Regulations 2006, which transpose the Public Sector Directive 2004/18). Central to the authority’s decision was its view that it would be inappropriate to take account of one particular waste facility which the plaintiff alleged would be available to it for support in the event that the facility to be constructed might not have been able to cope with the relevant waste tonnages. The High Court held that this was in breach of both the duty to consider fairly the bids of all tenderers in a project and the regulations (which allowed for supplementary information to be provided by bidders in the course of a restricted procedure). The Court set aside the decision to award the contract to the initially announced winner and ordered that the awarding authority return to the plaintiff’s bid and complete their evaluation taking into account the supporting facility in question.
