Irish Centre for European Law

Trinity College, Dublin

Public Procurement Litigation

Public Procurement Conference

28 June 2012

Nathy Dunleavy

CONTENTS 1. Threshold Questions

A. Substantive Procurement Regulations B. Contracts outside the Substantive Regulations C. Remedies Regulations D. Procurement Litigation outside the Remedies Regulations E. The Standstill Period

2. Commencing Proceedings

A. Applications under the Remedies Regulations 1. Locus Standi 2. Regulation 8 letters 3. Pleadings and commencing proceedings

B. Applications Outside the Remedies Regulations

3. Time Limits

A. Time Limits under the Remedies Regulations 1. Regulation 7(2) of the Remedies Regulations 2. Previous case law on time limits 3. Compatibility of Regulation 7(2) with EU law 4. Applications for Ineffectiveness

B. Time Limits outside the Regulations C. Applications for an Extension of Time

Key Sources

Irish Regulations

A. S.I. No. 130 Of 2010 European Communities (Public Authorities’ Contracts) (Review Procedures) Regulations 2010

B. S.I. No. 131 Of 2010 European Communities (Award Of Contracts By Utility Undertakings) (Review Procedures) Regulations 2010

C. S.I. No. 420 of 2010 Rules Of The Superior Courts (Review Of The Award Of Public Contracts) 2010 (Scheduling Order 84A of the Rules of the Superior Courts)

D. S.I. No. 691 of 2011 Rules of the Superior Courts (Judicial Review) 2011 (Amending Order 84 of the Rules of the Superior Courts)

E. S.I. No. 329 of 2006 European Communities (Award of Public Authorities’ Contracts) Regulations 2006

F. S.I. No. 50 of 2007 European Communities (Award of Contracts by Utility Undertakings) Regulations 2007

EU Directives

G. Directive 2007/66/EC amending Council Directives 89/665/EEC and 92/13/EEC with regard to improving the effectiveness of review procedures concerning the award of public contracts

H. Directive 89/665/EEC on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts

I. Directive 92/13/EEC coordinating the laws, regulations and administrative provisions relating to the application of Community rules on the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors

J. Directive 2004/17/EC coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors

K. Directive 2004/18/EC on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts

European Commission Documents

L. Commission Interpretative Communication on the Community law applicable to contract awards not or not fully subject to the provisions of the Public Procurement Directives [2006] OJ C179/2

M. Commission Staff Working Paper concerning the application of EU public procurement law to relations between contracting authorities (‘public-public cooperation’) (SEC)2011 1169 final

Selected Recent Case Law

(i) General and Threshold Questions

QDM Capital Ltd v Athlone Institute of Technology (IEHC, Birmingham J, 3 June 2011) R(Hossack) v Legal Services Commission [2011] EWCA Civ 788 Alstom Transport v Eurostar International Ltd [2012] EWHC 28 (Ch) JBW Group Limited v Ministry of Justice [2012] EWCA Civ 8 Sidey Limited [2011] CSOH 194

(ii) Time Limits

Dekra Éireann Teoranta v Minister for the Environment [2003] 2 IR 270 Veolia Water UK plc v Fingal County Council (No 1) [2007] 1 IR 690 Case C-406/08 Uniplex v NHS Business Services Authority (28 January 2010) Case C-456/08 Commission v Ireland, judgment of 28 January 2010 Traffic Signs and Equipment Ltd v Department for Regional Development [2010] NIQB 138 SITA UK v Greater Manchester Waste Disposal Authority [2011] EWCA Civ 156 Mermec UK Ltd v Network Rail Infrastructure Ltd. [2011] EWHC 1847 (TCC)

Public Procurement Litigation Threshold Issues, Time Limits and Commencing Proceedings

Nathy Dunleavy

Disclaimer: This paper is intended for discussion purposes only and does not contain any legal advice or assistance. No liability is accepted in respect of the materials in this paper.

Scope The focus of this paper is the practice and procedure of public procurement litigation in Ireland. This paper will focus on two aspects of procurement litigation, (i) time limits and (ii) issues surrounding the commencement of proceedings and pleadings. Before addressing those two aspects of procurement litigation, the first section will consider certain threshold issues, providing a short overview of the rules that govern the award of public contracts, followed by an overview of the rules on remedies. Account will be taken throughout of the rules applicable to contracts that fall partly or wholly outside the formal procurement rules.

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I. Threshold Issues

A. Substantive Procurement Regulations

1. The substantive procurement rules The formal substantive public procurement rules are contained in SI 329/2006, the Public Sector Award Regulations 20061 (which implement Directive 2004/18/EC2 into Irish law) and SI 50/2007, the Public Utilities Regulations 20073 (which implement Directive 2004/17/EC4 into Irish law). These Regulations set out in detail the rules applicable to public tenders that fall within their scope.

2. Proposal for new directives Three new public procurement directives were proposed by the European Commission on 20 December 2011. Two of these would replace the core procurement directives, Directives 2004/185 and 2004/17,6 and the third is a proposal for a new directive on concession contracts.7 These new directives are still making their way through the legislative process. It seems likely that the current drafts will form the basis of new public procurement directives that may be adopted by the Council and the European Parliament during 2013 or 2014. This paper deals only with the rules currently in force.

3. Scope of the Public Sector and Utilities Regulations A detailed review of the application of the Public Sector Award Regulations and the Utilities Regulations (and the directives which they implement) is well beyond the scope of this paper. The following is merely a very brief overview of the remit of the Regulations:

• The Public Sector Award Regulations apply to ‘contracting authorities’,8 defined as ‘The State, a local authority or a public authority, or an association comprising one or more local authorities or public authorities, or local authorities and public authorities’.9 A non-exhaustive list of specific entities to which Directive 2004/18 applies is set out in Annex III of that Directive. Irish bodies that are listed include Enterprise Ireland, FÁS, the National Roads Authority and the Legal Aid Board; categories listed include hospitals and similar institutions of a public character,

1 SI No 329/2006 European Communities (Award of Public Authorities Contracts) Regulations 2006. 2 Directive 2004/18/EC on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts [2004] OJ L134/114. 3 SI No 50/2007 European Communities (Award of Contracts by Utility Undertakings) Regulations 2007. 4 Directive 2004/17/EC coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors [2004] OJ L134/1. 5 Proposal for a Directive on public procurement COM(2011) 896 final (20 December 2011). 6 Proposal for a Directive on entities operating in the water, energy, transport and postal services sector COM(2011) 895 final (20 December 2011). 7 Proposal for a Directive on the award of concession contracts, COM(2011) 897 final (20 December 2011). 8 For a more detailed discussion of which entities are subject to the formal public procurement rules, see Dunleavy, ‘Public Procurement, State Aid and Antitrust: Understanding the Intersections’ School of Law, Trinity College, Dublin (23 February 2009). 9 Public Sector Regulations, Reg 3(1).

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agencies established to carry out particular functions or meet needs in various public sectors and other bodies governed by public law.

• The Utilities Regulations apply both to ‘contracting authorities’ and ‘public undertakings’,10 the definition of the latter following that in Directive 2004/17 – essentially an undertaking over which a contracting authority may exercise a dominant influence. The Utilities Regulations also apply to private sector entities engaged in one of the activities covered by Directive 2004/17 and which operate under special or exclusive rights (a ‘contracting entity’11). Specific entities to which Directive 2004/17 applies are listed in Annexes I to X of that directive.

• The definition of a ‘contracting authority’ in both the Public Sector Award Regulations and the Utilities Regulations includes a ‘public authority’, the definition of which is similar to the definition of a ‘body governed by public law’ in the underlying directives.12 In the Public Sector Award Regulations, a ‘public authority’ is defined as:

any body corporate, not having an industrial or commercial character, that is established for a public purpose, and-

(a) is financed wholly or substantially by the State, a local or regional authority or another public authority; or

(b) is subject to management supervision by such a body, or

(c) has an administrative, managerial or supervisory board, more than half of whose members are appointed by the State, a local or regional authority or another public authority,

and, in particular, includes any body listed in Annex III to the Public Authorities Contracts Directive.13

• The Public Sector Award Regulations apply to ‘public works contracts’, ‘public supply contracts’ and ‘public service contracts’, as those terms are defined in Regulation 3(1) of the Regulations. Regulation 4 of the Utilities Regulations state that the Regulations apply to ‘contracts in writing (other

10 Utilities Regulations, Reg 3(1). 11 Utilities Regulations, Reg 3(1). 12 Directive 2004/18, Art 1(9); Directive 2004/17, Art 2(1)(a). On whether a body is a ‘contracting authority’ and in particular whether it is a ‘body governed by public law’, see the recent judgment of Roth J in the English High Court in Alstom Transport v Eurostar International Ltd [2012] EWHC 28 (Ch), paras 75-94. As Arrowsmith has explained, the concept of a ‘body governed by public law’ ‘excludes entities which, whilst connected with government, are not likely to apply national preferences because they are subject to commercial pressures to purchase efficiently. Most notably this applies to public entities providing goods or services to the market in competition with other firms’ (Arrowsmith, The Law of Public and Utilities Procurement, 2nd edn (2005), para 5.10). For a more general discussion of the concept of a body governed by public law in Community law, see Chiti, ‘The EC Notion of Public Administration: The Case of the Bodies Governed by Public Law’ [2002] European Public Law 473. 13 Public Sector Award Regulations, Reg 3(1). A similar definition is contained in the Utilities Regulations, Reg 3(1).

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than excluded contracts) entered into or to be entered into between a contracting entity and an economic operator under which the operator undertakes to carry out works for, or to supply a kind of product or service to, the entity relating to an activity described in Chapter 1 of Part 2’ of the Regulations. Various of the terms in this definition are defined in Regulation 3(1) of the Utilities Regulations.

• The Public Sector Award Regulations and the Utilities Regulations only apply when the value of the contract is above a certain threshold. From 1 January 2012, the main thresholds are €130,000 for public supply and service contracts awarded by central government, €200,000 for other public supply and service contracts and €5,000,000 for public works contracts.14

• The Public Sector Award Regulations draw a distinction between Part A and Part B service contracts. Part A service contracts are subject to the entirety of the rules in the Public Sector Award Regulations, whereas Part B service contracts are only subject to Regulation 23 (the requirement to set out technical specifications) and Regulation 41 (the requirement to publish a notice of the result of the award). Identifying whether a particular service is Part A or Part B is not always straightforward.15

4. Contract categorisation as an issue in litigation The categorisation of a contract as, for example, a public supply/service contract or a works contract or as a concession, can determine whether the formal procurement rules are applicable. Obligations under those rules may be avoided, for example, if the contract is classified as a works contract, to which the higher financial threshold (currently €5 million) applies, rather than a services or supply contract, to which a lower threshold applies. This question arose as a preliminary issue in QDM Capital Ltd v Athlone Institute of Technology,16 one of the few recent procurement cases in Ireland that has resulted in a judgment of the High Court. It was argued by the applicant that a demolition and construction contract was a mixed service/supply contract to which the lower threshold for application of the formal procurement rules applied, and not a works contract, as the respondent institute maintained.

14 Commission Regulation (EU) No 1251/2011 amending Directives 2004/17/EC, 2004/18/EC and 2009/81/EC in respect of their application thresholds for the procedures for the award of contracts [2011] OJ L319/43. 15 The categories of services listed in Parts A and B are explained further in the Common Procurement Vocabulary (‘CPV’)—as set out in Regulation (EC) No 2195/2002 and updated by Commission Regulation (EC) No 213/2008 (see also the CPV Explanatory Notes (available at http://www.epractice.eu/files/media/media2418.pdf)) — and the UN’s Central Product Classification (provisional version) (‘CPC’) (available at http://unstats.un.org/unsd/cr/registry/regcst.asp?Cl=9&Lg=1). It is therefore necessary to examine these classifications to determine the appropriate service category applicable. A CPC and a CPV category are ascribed to each Part A and Part B service in Schedule 2 of the 2006 Regulations (and Annex II to Directive 2004/18). Where there are differences in interpretation between the CPC and CPV, the CPC nomenclature applies: Public Sector Award Regulations, Reg 3(2) and Sch 2, fn 2; Directive 2004/18, Art 1(14). The classification of a service as falling within Part A or Part B is a question of fact: see C-411/00 Felix Swoboda GmbH v Österreichische Nationalbank [2002] ECR I-10567, para 62. 16 Judgment of Birmingham J of 3 June 2011.

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Consequently, the applicant argued that the contract should have been advertised in the Official Journal of the EU as required by the Public Sector Award Regulations. The preliminary issue of whether the contract was a works contract was tried before the High Court. Following a review of the relevant directives and Irish Regulations and the case law on the categorisation of contracts, Birmingham J held that the essential obligation under the contract was the carrying out of works of a construction/refurbishment character and it was that obligation which gave the contract its character. The contract was therefore a works contract, to which the higher monetary threshold for application of the formal procurement rules applied, meaning that the respondent Institute had not been required to advertise the contract in the Official Journal. An appeal against this judgment is pending before the Supreme Court.17

5. A similar question arose in QDM Capital Ltd v Galway City Council,18 which concerned a contract for the replacement of a swimming pool heating system. If the contract was a works contract, it was below-threshold, whereas if it was a supply contract, it was above-threshold and the contract notice that had been issued would have been defective for failure to comply with the formal procurement rules contained in SI 329/2006. It was accepted that the contract was a mixed contract, containing elements of the supply of products and works. Feeney J concluded that the main purpose of the contract was works, considering all relevant elements, including the fact that the duration of the contract was expected to last 18 weeks.

6. Recently, the English Court of Appeal in JBW19 has dealt with the question whether contracts for bailiff services to be provided to magistrates courts were service concession contracts, which were excluded from the scope of the formal procurement rules, or public service contracts to which the procurement Regulations applied. While the contracts did not fit neatly into either category and lacked many of the typical features of a concession, Elias LJ ultimately concluded that the contracts were concessions, although conceding that the categorization was ‘a very difficult question’.20

B. Contracts outside the Regulations

7. General principles of EU law The general principles of EU law may apply to public tenders in addition to the formal procurement rules. This means that contracts governed by the Public Sector Award Regulations and the Utilities Regulations are also subject to compliance with general EU law principles (many of which are codified in the Regulations themselves). It also means that contracts falling wholly outside the Regulations (such as below threshold contracts), partly

17 Birmingham J issued a separate ruling on costs on 6 July 2011, with costs awarded to the respondent (the applicant had argued that application of the normal costs rule, that costs follow the event, would have rendered the public procurement legislative scheme and the rules on remedies inoperable and in particular would prevent many small and medium-sized companies from exercising their rights; Birmingham J saw no basis for adopting this approach). 18  [2011] IEHC 534.  19 JBW Group Limited v Ministry of Justice [2012] EWCA Civ 8. 20 JBW Group Limited v Ministry of Justice [2012] EWCA Civ 8, para 52.

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outside the Regulations (such as above threshold Part B service contracts) or service concessions, and which have a cross-border interest, are subject to general principles of EU law. Of particular importance in procurement cases are the principles of transparency, equal treatment, non-discrimination on the grounds of nationality and proportionality.21

8. Cross-border interest The obligation on contracting authorities to carry out tenders in respect of contracts that are not, or not fully, subject to the public procurement directives flows from the requirements of EU law. However, the application of EU law will only be relevant where there is a cross-border interest. As the Court of Justice explained in SECAP:

20. That does not mean, however, that contracts below the threshold are excluded from the scope of Community law. According to the established case-law of the Court concerning the award of contracts which, on account of their value, are not subject to the procedures laid down by Community rules, the contracting authorities are nonetheless bound to comply with the fundamental rules of the Treaty and the principle of non-discrimination on the ground of nationality in particular.

21. However, according to the case-law of the Court, the application of the fundamental rules and general principles of the Treaty to procedures for the award of contracts below the threshold for the application of Community directives is based on the premise that the contracts in question are of certain cross-border interest.22

9. Is a potential cross-border interest sufficient? In Commission v Ireland,23 Advocate General Mengozzi stated that ‘if a public contract involves a cross-border interest, even if merely a potential cross-border interest, the rules that arise from the Treaty must apply’.24 The Court of Justice does not yet seem to have explicitly endorsed this view that merely a potential cross-border interest is sufficient to trigger the application of the Treaty rules to a tender. However, the case law cited by Advocate General Mengozzi does, arguably, implicitly approve the test of a mere potential cross-border interest, with the Court of Justice stating in Wall,25 in respect of concessions, that the ‘obligation of transparency applies

21 For a recent overview, see Brown, ‘EU primary law requirements in practice: advertising, procedures and remedies for public contracts outside the procurement directives’ (2010) 19 Public Procurement Law Review 169. See also Commission Communication on the Community Law applicable to contract awards not or not fully subject to the provisions of the Public Procurement Directive [2006] OJ C179/02. The Commission Communication was endorsed by the General Court in Case T-258/06 Germany v Commission, judgment of 20 May 2010, as properly reflecting the EU law obligations that apply to contracts of cross-border interest that fall wholly or partly outside the formal procurement rules, the General Court stating at paragraph 162 that the Communication ‘does not contain new rules for the award of public contracts which go beyond the obligations under Community law as it currently stands’. Despite the guidance in the Commission Communication, there is some uncertainty as to the scope of the requirements that flow from the Treaty principles and the features of a procurement that will, if included or excluded, result in a breach of EU law. 22 Case C-147/06 SECAP SpA v Comune di Torino [2008] ECR-I 3565, paras 20-21 (references omitted). 23 Case C-226/09 Commission v Ireland, judgment of 18 November 2010. 24 Case C-226/09 Commission v Ireland, opinion of Advocate General Mengozzi, para 22 (emphasis added). 25 Case C-91/08 Wall AG [2010] ECR I-2815.

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where the service concession in question may be of interest to an undertaking located in a Member State other that in which the concession is awarded.’26 This formulation has been cited a number of times by the Court, including in Commission v Ireland27 itself, which concerned a Part B service contract.

10. When is there a cross-border interest? It is in principle up to the contracting authority concerned to determine whether a below threshold contract may be of cross-border interest, it being understood that that assessment may be subject to judicial review.28 The particular characteristics of the contract need to be considered, with potentially relevant factors including the estimated value of the contract, its technical complexity and whether the location at which products are to be supplied or works or services performed is such as to be likely to attract the interest of foreign operators.29 The proximity of the location in which the contract is to be performed to the border of another Member State may be a factor.30

11. Sidey A recent example of a court addressing the question of whether a contract was of sufficient cross-border interest so as to impose EU law obligations on a contracting authority is the judgment of the Outer House of the Scottish Court of Session in Sidey.31 A local authority contract for the replacement of kitchens and bathrooms was held not to be of cross-border interest. In reaching this decision, Lord Brailsford found that features in the tender documentation which were suggestive of a cross-border interest were not conclusive of there being such a cross-border interest. The fact that the local authority employees involved in the tender did not even consider whether there was a cross-border interest was held to be a more telling factor. Lord Brailsford explained his reasoning further:

It seems to me that such employees familiar both with the nature and scope of the contract in question and with the placing of contracts of this sort in general would be likely to be aware whether or not a contract had the potential to generate any cross-border interest. Failure to consider the issue is in my view likely to be indicative of, in a pragmatic sense, lack of potential for cross-border interest. This view is strengthened by a consideration of both the nature of the contract and the value thereof. This was a contract for, in commercial terms, a relatively modest, contract price. It involved work of a fairly labour intensive nature in a relatively large number of local authority houses where it would be necessary to have local staff on the ground. When these facts are considered I do not find it surprising that the respondents’ employees responsible for the contract, whilst conceding that they did not consider the matter at the time of issuing the contract documents, did not consider that the contract would have generated cross border interest. Looked at as objectively as I can I have therefore formed the view that the position of the respondents is correct and that there is no question of cross-border interest in this contract.32

26 Case C-91/08 Wall AG [2010] ECR I-2815, para 34. 27 Case C-226/09 Commission v Ireland, judgment of 18 November 2010, para 32. 28 Case C-147/06 SECAP SpA v Comune di Torino [2008] ECR-I 3565, para 30. 29 Case C-147/06 SECAP SpA v Comune di Torino [2008] ECR-I 3565, para 24. 30 Case C-147/06 SECAP SpA v Comune di Torino [2008] ECR-I 3565, para 31. 31 Sidey Limited [2011] CSOH 194. 32 Sidey Limited [2011] CSOH 194, para 19.

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12. It is arguable that this decision grants overly generous deference to contracting authorities by suggesting that if employees of contracting authorities did not consider the issue of cross-border interest, this is indicative of the fact that there is none. However, it is also apparent from the judgment that the nature of the contract and its low value were important considerations in deciding that the contract was not of cross-border interest.

13. Exemptions from public procurement and Treaty rules Depending on the circumstances pertaining to a particular public contract, there may be scope for the contracting authority to argue that it is exempt from the public procurement rules and/or the Treaty rules. Exemptions may apply both in the case of contracts subject to the formal procurement rules and those outside the rules but of cross-border interest. A detailed discussion of exemptions is beyond the scope of this paper. There are specific exemptions contained in the formal public procurement rules, for example, the partial exemption that a contracting authority can award a contract using the negotiated procedure and without a prior advertisement in cases of extreme urgency.33 Exemptions contained in the Treaties include those contained in Article 51 TFEU on the exercise of official authority, in Article 52 TFEU on grounds of public policy, public security or public health, in Article 106(2) TFEU on services of general economic interest34 and in Article 346 TFEU on the security interests of a Member State. Other exemptions include those for in-house provision of services (the Teckal exemption35) and an exemption for contracting authorities engaging with each other for the provision of shared services.36 There may also be situations where it is possible to argue that the procurement rules do not apply for other reasons, for example because there is in fact no contract at issue,37 with the relevant service carried out pursuant to an administrative scheme or in some other way that does not give rise to a contract.

14. Other grounds of challenge If a Part B service contract or a below threshold contract does not have a sufficient cross-border interest, then there is unlikely to

33 Public Sector Award Regulations 2006, Reg 32(1)(c). 34 See Case C-160/08 Commission v Germany, judgment of 29 April 2010 (Germany unsuccessfully arguing that a contract for ambulance services was exempt from Directive 92/50 and Directive 2004/18 on the basis of Article 106(2) TFEU). 35 Case C-107/98 Teckal Srl v Commune di Viano [1998] ECR I-812. 36 See, in particular, Case C-480/06 Commission v Germany [2009] ECR I-4747 and Commission Staff Working Paper concerning the application of EU public procurement law to relations between contracting authorities (‘public-public cooperation’) (SEC)2011 1169 final. 37 See, eg, Public Sector Award Regulations 2006, Reg 4, which states that the Regulations apply to ‘public contracts’. The term ‘public contracts’ is defined in Directive 2004/18, Art 1(2)(a) as ‘contracts for pecuniary interest concluded in writing between one or more economic operators and one or more contracting authorities and having as their object the execution of works, the supply of products or the provision of services within the meaning of this Directive’. See, on this issue, Case C-399/98 La Scala [2001] ECR I-5409, in particular at paras 63-75 (discussing whether the contractual element as required by Directive 92/50 was present; contract found to exist, with the Court holding at para 73 that the fact the agreement was governed by public law and was concluded in the exercise of public power did not preclude, but rather militated in favour of, the existence of a contract within the meaning of Directive 92/50). Cf Case C-220/05 Auroux [2007] ECR I-385 (no exemption from the procurement rules on the ground the agreement may be concluded only with certain legal persons, which themselves have the capacity of contracting authority and which will be obliged, in turn, to apply those procedures to the award of any subsequent contracts; see, in particular, the opinion of Advocate General Kokott, paras 70-78).

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be any basis on which an applicant can invoke EU law to challenge a decision of a contracting authority in relation to that contract. Ireland does not have a national procurement law that can be invoked in such a situation. An applicant wishing to challenge a decision in relation to such a contract would need to consider what other grounds of challenge might be available. An applicant in proceedings under the Remedies Regulations or in the case of contracts with a cross-border interest outside the Regulations, may also wish to consider adding such other grounds of challenge. These might include, for example, general administrative law grounds (e.g. irrationality or breach of a legitimate expectation38), a claim that the contracting authority has breached an implied contract,39 or claims that the contracting authority has acted ultra vires.

C. Remedies Regulations

15. Remedies rules Remedies for breaches of the public procurement rules are regulated by overlapping schemes of EU directives, case law of the Court of Justice of the European Union, domestic regulations and domestic case law. A distinction should be made between contracts that are the subject of the formal remedies rules (governed by the Public Sector Award Regulations or the Utilities Regulations) and contracts that fall outside these rules. The procedures relevant to applications for review of the latter types of contract are different to those governed by the formal remedies rules. The application of the formal remedies rules will be discussed first, before turning to contracts falling outside of those rules.

16. Irish Remedies Regulations The current remedies regulations in Ireland are:

(i) in respect of public sector contracts, SI 130/2010 (implementing Directive 89/665,40 as amended by Directive 2007/6641) (referred to here as ‘SI 130/2010’ or the ‘Public Contracts Remedies Regulations’), and

38 For example, a legitimate expectation that the contracting authority would follow its stated procedures. In Sidey, the petitioners were successful in making out a breach of their legitimate expectation that the respondents would apply the principles of equal treatment and transparency to their evaluation of the tender documents (Sidey Limited [2011] CSOH 194, paras 20-22). The Court also found, at para 23, that there was substantial merit in the argument that that the respondents failed to apply their procedures correctly or rationally. 39 The Northern Irish courts have recognised implied contracts in the context of tender documents: see, eg, Scott v Belfast Education and Library Board [2007] NICh 4; McConnell Archive Storage Limited v Belfast City Council [2008] NICh 3. The English courts have also been prepared to recognise that pursuant to an implied contract, a contracting authority has an obligation to consider a tender submitted to it and that such consideration should be in good faith (see, eg, JBW Group Limited v Ministry of Justice [2012] EWCA Civ 8, para 61 (Elias LJ), applying Blackpool Aero Club v Blackpool Borough Council [1990] 1 WLR 1195). The question of an implied contract in this context does not appear to have recently been considered by the Irish courts. In a very different context, the Irish High Court rejected the incorporation of an implied term in a bidding process for the sale of the company that the selling shareholders would complete the transaction with the highest bidder (Howberry Lane v Telecom Éireann [1999] 2 ILRM 232 (Morris P)). 40 Directive 89/665 on the co-ordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts [1989] OJ L395/33.

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(ii) in respect of utilities contracts, SI 131/2010 (implementing Directive 92/13,42 as amended by Directive 207/66) (referred to here as SI 131/2010 or the ‘Utilities Remedies Regulations’).

17. Similarity of Public Sector and Utilities Remedies Regulations SI 130/2010 and SI 131/2010 contain very similar provisions and many of the regulations are numbered and worded identically. For the most part, this paper will focus on SI 130/2010 and will tend to avoid duplication by not always discussing the corresponding provision (which will often be the same) in SI 131/2010 (SI 130/2010 and SI 131/2010 are referred to together as the ‘Remedies Regulations’).

18. Scope of SI 130/2010 Regulation 3 of SI 130/2010 provides that the Regulations apply to ‘decisions taken, after the coming into operation of these Regulations, by contracting authorities in relation to the award of reviewable public contracts, regardless of when the relevant contract award procedure commenced.’ Regulation 2 in turn defines a ‘reviewable public contract’ as follows:

[A] contract (including a framework agreement and a dynamic purchasing system) to which the Public Authorities’ Contracts Regulations apply in accordance with Part 2 or 9 of those Regulations, or a design contest to which Part 10 of those Regulations applies.

19. Part B service contracts This definition of a ‘reviewable public contract’ would appear to mean that SI 130/2010 applies to Part B, as well as Part A, service contracts, although the position is not beyond doubt. Regulation 4 of the Public Sector Award Regulations, which is contained in Part 2 of those Regulations, states that the Regulations apply to above threshold Part B service contracts. It can therefore be argued that Part B contracts are contracts to which the Public Sector Award Regulations ‘apply in accordance with Part 2’ of the Regulations. Even though Part B contracts are merely mentioned in Part 2, that Part of the Regulations only deals with the ‘Scope of These Regulations’, so being mentioned may be sufficient for purposes of the definition of a ‘reviewable public contract’ in Regulation 2 of SI 130/2010.

20. However, Regulation 21 of the Public Sector Award Regulations states that Part B contracts are ‘subject only to Regulations 23 and 41’. Regulation 23 is contained in Part 5 of the Regulations and Regulation 41 in Part 7. So, the substantive rules applicable to part B contracts are not rules within any of Part 2, 9 or 10. Consequently, despite the listing of Part B contracts in Regulation 4 (contained in Part 2), it may at least be arguable that Part B contracts are not contracts to which the Public Sector Award Regulations ‘apply in accordance with Part 2 or 9 ..[or..10]..’ as no substantive provisions in any of those parts apply to Part B contracts. However, given that Part 2 only deals with scope and not with

41 Directive 2007/66/EC amending Council Directives 89/665/EEC and 92/13/EEC with regard to improving the effectiveness of review procedures concerning the award of public contracts [2007] OJ L335/31. 42 Directive 92/13 co-ordinating the laws, regulations and administrative provisions relating to the application of Community rules on the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors [1992] OJ L76/14.

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substantive rules, the better view may be that the mere mention of Part B contracts in Part 2 is sufficient to bring them within the definition of a ‘reviewable public contract’.

21. Assuming then that a Part B service contract is a ‘reviewable public contract’ and so subject to SI 130/2010, it is in any event the case that the entirety of the rules in SI 130/2010 does not apply to Part B contracts. For example, as the Public Sector Award Regulations do not require a standstill period for Part B contracts, the requirement in Regulation 5 of SI 130/2010 for a contracting authority to observe a standstill period and provide a statement of reasons does not apply in the case of Part B43. SI 130/2010 does not apply at all to contracts outside the Public Sector Award Regulations, such as service and supply contracts falling below the relevant financial thresholds in the Public Sector Award Regulations.

22. Scope of SI 131/2010 The scope of SI 131/2010 is framed in a similar way to SI 130/2010. Regulation 3 of SI 131/2010 provides that the Regulations apply to ‘reviewable contracts’, in turn defined in Regulation 2(1) as contracts to which the Utilities Regulations apply.

23. National Regulations to be interpreted to conform with EU Directives A general point in considering how the Irish courts might apply the Remedies Regulations is the requirement on the courts to interpret national implementing regulations, so far as possible, in light of the underlying EU directive. As the Court of Justice stated in Marleasing: 44

[In] applying national law, whether the provisions in question were adopted before or after the directive, the national court called upon to interpret it is required to do so, as far as possible, in the light of the wording and the purpose of the directive in order to achieve the result pursued by the latter…

24. This point was also made by Fennelly J in Albatros Feeds v Minister for Agriculture and Food, while emphasizing that this EU law obligation could not lead to a contra legem interpretation of the national law:45

43 See further, para 31 below, discussing the possibility that the general Treaty principles may require a standstill period to be applied to Part B service contracts in particular circumstances. 44 Case C-106/89 Marleasing SA v La Comercial Internacional de Alimentación SA [1990] ECR I -4135, para 8. 45 Albatros Feeds Limited v Minister for Agriculture and Food [2007] 1 IR 221, 243-244. See also, Case C-403/01 Pfeiffer [2004] ECR I-8835, paras 111-114; the judgment of McKechnie J in Eircom Limited v Commission for Communications Regulations [2007] 1 IR 1, 24 (noting the obligation on the national court to interpret various national regulations which ‘were passed in order to incorporate … Directives into national law, in a manner, so far as is possible in conformity with the Directives’); the judgment of Edwards J in Environmental Protection Agency v Neiphin Trading Ltd [2011] IEHC 67 (on the interpretation of Irish legislation enacted to give effect to EU directives in the environmental law context); and, on the limits of the conforming interpretation obligation, the judgment of Roth J in Alstom Transport v Eurostar International Ltd [2012] EWHC 28 (Ch), paras 34-48 and para 93 (UK Regulations were applicable to domestic bodies and to interpret the provision in the Regulations to cover bodies in all other 26 Member States would go against the grain of the Regulations; Roth J recognized that this finding, which strictly was obiter, was problematic); and the judgment of Kitchin LJ in Football Association Premier League Ltd v QC Leisure [2012] EWHC 108 (Ch) (a defence to copyright infringement in national legislation, which was not

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It is, at the same time, perfectly clear that the court is under an obligation to interpret national law, so far as possible, in the light of the Community law provisions it is designed to implement. The important qualification is: so far as possible. The European Court of Justice does not interpret national law. It is a fundamental principle that the Community law respects national procedural autonomy. The national court is subject to the obligation of ‘conforming interpretation,’ … There are, however, limits to that obligation. Most recently, the European Court of Justice in its judgment in Adeneler v Ellinkos Organismos Galaktos (Case C-212/04) [2006] IRLR 716 repeated at para 110 that ‘the obligation on a national court to refer to the content of a directive when interpreting and applying the relevant rules of domestic law is limited by general principles of law, particularly those of legal certainty and non-retroactivity, and that obligation cannot serve as the basis for an interpretation of national law contra legem.’

D. Procurement Litigation outside the Remedies Regulations

25. Form of proceedings The most obvious route for bringing a challenge in respect of a public contract not covered by the Remedies Regulations is by way of judicial review. However, it might also be possible to bring an action by way of plenary proceedings46. Another option for an aggrieved bidder is to make a complaint to the European Commission (this can also be done when the Remedies Regulations apply. However, the most that will occur in this case is that the Commission will investigate the matter and possibly take an infringement action against Ireland and there may be no real benefit to an aggrieved bidder from this course of action. Proceedings outside the Remedies Regulations are discussed further below.47

E. The Standstill Period

26. The standstill period A standstill period is a period of time, after which a contracting authority has made its award decision, during which the contracting authority cannot conclude a contract. The purpose of the standstill period is to allow disappointed tenderers time to bring proceedings for review of the award decision before the contract has been entered into.

27. Basis of the requirement for a standstill The requirement for a standstill period in principle was established by the Court of Justice in the Alcatel case,48 and the requirement has since been codified and expanded on in the Remedies Directives and the Remedies Regulations. Recital 6 of Directive 2007/66 provides that ‘the standstill period should give the tenderers concerned sufficient time to examine the contract award decision and to assess whether it is appropriate to initiate a review procedure.’ Article 2a(1) of Directive 89/665, as amended, provides that Member States shall ensure that there is ‘sufficient time for effective review of the

recognized by the relevant EU copyright directive, could not be construed away as this would ‘go against the grain’ of the legislation (para 77)). Note also the potential relevance of the fact that national courts have a duty of sincere cooperation pursuant to Article 4(3) of the Treaty on European Union. 46 See O’Donnell v Dun Laoghaire Corporation [1991] ILRM 301; Hogan and Morgan, Administrative Law in Ireland, 4th ed (2010) para 17-25 et seq. 47 See para 57 et seq. 48 Case C-81/98 Alcatel Austria AG v Bundesministerium fur Wissenschaft und Verkehr [1999] ECR I-7671, para 43.

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contract award decisions taken by contracting authorities’, with Article 2a(2) requiring a standstill period of at least 10 calendar days in the case of fax/electronic communications and 15 calendar days in other cases.

28. Standstill period in the Remedies Regulations The Remedies Regulations provide for minimum standstill periods of 14 and 16 calendar days respectively, depending on the method of notification. Regulation 5 of SI 130/2010 sets out the details of the standstill period:

5.—(1) A contracting authority shall not conclude a reviewable public contract to which a standstill period applies under these Regulations within the standstill period for the contract.

(2) There is no standstill period for—

(a) a contract where the Public Authorities’ Contracts Regulations do not require prior publication of a contract notice in the Official Journal,

(b) a contract where the only tenderer concerned is the one who is awarded the contract and there are no candidates concerned,

(c) a contract entered into or awarded on the basis of a framework agreement in accordance with Regulation 33, 34 or 35 of the Public Authorities’ Contracts Regulations, or

(d) a specific contract entered into on the basis of a dynamic purchasing system in accordance with paragraphs (5) to (12) of Regulation 36 of the Public Authorities’ Contracts Regulations.

(3) The standstill period for a contract begins on the day after the day on which each tenderer and candidate concerned is sent a notice, in accordance with paragraphs (2) and (3) of Regulation 6, of the outcome of his or her tender or application.

(4) The duration of the standstill period must be at least—

(a) if the notice under Regulation 6 is sent by fax or electronic means, 14 calendar days, or

(b) if the notice is sent by any other means, 16 calendar days

29. Tenderers and candidates protected by the standstill It is apparent from Regulation 5(3) that the standstill period can apply to both tenderers and candidates concerned. A tenderer shall be deemed to be ‘concerned’ if not yet definitively excluded from the contract award procedure.49 A candidate will only be deemed to be ‘concerned’ if the contracting authority has not made available information about the rejection of their application before the notification of the contract award decision to the tenderers concerned.50

49 SI 130/2010, Reg 2(3)(a). 50 SI 130/2010, Reg 2(3)(b).

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30. Standstill periods for contracts outside the Remedies Regulations? As evident from Regulation 5(3), the start of the standstill period is determined by the date on which the required standstill notice, containing a summary of the reasons for the award decision, is sent to losing tenderers. The contents of the standstill notice are set out in Regulation 6 and the duty to give reasons for decisions by contracting authorities is discussed further below. Regulation 5(2) lists contracts in respect of which a standstill period is not required. These include contracts which do not require prior publication of a contract notice in the Official Journal,51 which includes Part B service contracts. Obviously, contracts not covered by the Remedies Regulations, such as those below the monetary thresholds in the Pubic Sector and Utilities Regulations, are not subject to the standstill required by the Remedies Regulations.

31. Even though certain contracts are exempt from the standstill requirement under the Remedies Regulations, it is possible that in certain circumstances, a court would find that the application of general principles of EU law imposed a standstill obligation. In Federal Security,52 the Northern Irish High Court ruled that in certain circumstances, a standstill requirement applies in respect of Part B services contracts. In this case, the respondent had entered into a contract for the provision of security services (a Part B service) on the same day that it notified the applicant that it was not successful. In deciding that a standstill period was required in the particular circumstances given, inter alia, the cross-border interest in the contract, its significant value of approximately £60 million and the fact that the applicant submitted the lowest-priced tender, the Court noted that fundamental principles of EU law, including transparency, equal treatment and the effectiveness of remedies, ‘may, in particular factual situations, require the use of a standstill period in contract procedures normally excluded from that obligation’.53 In practice, it seems that contracting authorities generally apply a standstill period even where this is not required by the Remedies Regulations. This is certainly the safer course for a contracting authority to follow.

32. Duty to give reasons The provision of adequate information to a losing tenderer is an essential requirement to ensure that the disappointed tenderer can decide whether there are grounds for bringing an action for review of the contracting authority's award decision. The obligation in the Remedies Regulations to provide reasons, which is contained in Regulation 6, is intertwined with the requirement for a standstill period. The losing bidder must be given sufficient time for effective review of the award decision and, according to Article 2a of the Remedies Directive, the standstill notice must contain a summary of the relevant reasons for the decision as set out in Article 41(2) of Directive 2004/18. Article 41(2) in turn requires the contracting authority to identify ‘the characteristics and relative advantages of the tender selected as well as the name of the successful tenderer or the parties to the framework agreement’. Additionally, the principle of effective

51 SI 130/2010, Reg 5(2)(a). 52 Federal Security Services Limited v Chief Constable for the Police Service of Northern Ireland [2009] NICh 3. 53 Federal Security Services Limited v Chief Constable for the Police Service of Northern Ireland [2009] NICh 3, para 32 (McCloskey J).

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judicial protection of EU law rights suggests that contracting authorities are required to state the grounds of their award decisions so as to allow for the effective exercise of the right to judicial review.54 This means that sufficient reasons must be provided even for contracts falling outside the formal procurement rules.55 The principle of effective judicial protection is enshrined in Article 47 of the Charter of Fundamental Rights. It may also be worth considering in particular circumstances, for example in the case of below threshold contracts, whether it might be arguable that there is a duty to give reasons as an aspect of fair procedures and justice guaranteed by the Constitution and, possibly, as an unspecified right under Article 40.3.56 However, it should be noted that the case law in this area illustrates that the obligation to give reasons is limited and that the ‘degree to which a decision has to be supported by detailed reasons depends upon the nature of the decision itself’.57 The extent of the duty to give reasons is an issue that frequently arises in practice and there is considerable uncertainty as to the scope of the obligation. Unfortunately a more detailed treatment of this area is beyond the scope of this paper.58

54 See, eg, Case 222/86 Unectef v Heylens [1987] ECR 4097, para 15. 55 See Commission Communication on the Community Law applicable to contract awards not or not fully subject to the provisions of the Public Procurement Directive [2006] OJ C179/02, para 2.3.3: ‘In order to comply with this requirement of effective judicial protection, at least decisions adversely affecting a person having or having had an interest in obtaining the contract, such as any decision to eliminate an applicant or tenderer, should be subject to review for possible violations of the basic standards derived from primary Community law. To allow for an effective exercise of the right to such a review, contracting entities should state the grounds for decisions which are open to review either in the decision itself or upon request after communication of the decision’. 56 See De Blacam, Judicial Review, 2nd ed (2009) 237. 57 Garda Representative Association v Minister for Finance [2010] IEHC 78 (Charleton J) para 32. See also the discussion by Kelly J of the obligation to give reasons in Mulholland v An Bord Pleanála (No. 2) [2006] 1 IR 453. 58 Relevant cases that might be consulted on the duty to give reasons include, among others, Case T-89/07 VIP Car Solutions SARL v European Parliament; Case T-437/05 Brink’s Security Luxembourg v Commission [2009] ECR II-3233; Case T-300/07 Evropaïki Dynamiki v Commission; Case T-465/04 Evropaïki Dynamiki v Commission [2008] ECR II-154; Case T-70/05 Evropaïki Dynamiki v European Maritime Safety Agency, judgment of 2 March 2010 (upheld on appeal, Case C-252/10 Evropaïki Dynamiki v European Maritime Safety Agency, judgment of 21 July 2011); Case T-63/06 Evropaïki Dynamiki v European Monitoring Centre for Drugs and Drug Addiction (EMCDDA), judgment of 9 September 2010; Case T-387/08 Evropaïki Dynamiki v Commission, judgment of 9 September 2010 (appeal dismissed, Case C-561/10P Evropaïki Dynamiki v Commission, Order of 20 September 2011); Case T-50/05 Evropaïki Dynamiki v Commission [2010] ECR II-1071; Case T-19/95 Adia Interim SA v Commission [1996] ECR II-321. Note also that there is a potential argument that to the extent that Regulation 6(5) of the Remedies Regulations (which states that the information to be provided to a losing tenderer ‘may be provided by setting out’ scores) is read to mean that the reason-giving obligation can always be met by merely providing scores, this provision is incompatible with EU law. However, it can also be argued that this provision can be read to conform with EU law, by interpreting it to mean that it does not state that scores will always be sufficient, but may be so in particular circumstances.

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II. Commencing Proceedings 33. Introduction This section discusses proceedings brought under the

Remedies Regulations as well as proceedings brought outside the Remedies Regulations. It does not discuss another option open to an aggrieved bidder – making a complaint to the European Commission. The ultimate potential outcome of such a complaint, were it taken up by the Commission, would be proceedings brought by the Commission against Ireland in the Court of Justice.59 Whether this course of action can bring any real benefit to an aggrieved bidder is doubtful.60

A. Applications under the Remedies Regulations

34. Application for review made to the High Court The Remedies Regulations provide that the review procedures and powers shall be carried out and exercised by the High Court.61 Order 84A creates a form of ‘specialist’ judicial review proceeding for challenging public procurement decisions.62 The application is made by originating Motion on Notice, grounded upon a statement.63

1. Locus Standi

35. Introduction To date, the question of standing has received only limited attention in procurement cases, as actions have generally been brought by aggrieved bidders who participated in the procurement process, and who unquestionably had standing to challenge.

36. The ‘sufficient interest’ test In conventional judicial review proceedings, standing generally requires an applicant to demonstrate that he has a ‘sufficient interest’ in the matter to which the application relates.64 Broadly, this means that ‘the officious man of straw’65 will not be permitted to pursue proceedings. The courts have sought to strike a fair balance between affording

59 See, eg, Case C-226/09 Commission v Ireland, judgment of 18 November 2010. 60 Although it is not inconceivable that an action could be taken by the aggrieved bidder against the State, possibly seeking damages, following a finding by the Court of Justice that the State has breached EU law; however, there may be significant challenges facing a plaintiff in this situation, not least time limit and causation issues. See, for discussion of some of the issues raised, Schebesta, ‘Community Law Requirements for Remedies in the Field of Public Procurement: Damages’ (2010) 5 European Public Private Partnership Law Review 23. Although not in the same context, see also Case C-568/08 Spijker Infrabouw/De Jonge Konstruktie, judgment of 9 December 2010, in particular the opinion of Advocate General Cruz Vilallón, para 81 et seq. discussing damages. 61 See Remedies Regulations, Regs 3(1) and 11(1). See Reg 4(1) of the Public Sector Remedies Regulations and Utilities Remedies Regulations. 62 See, eg, Dekra Éireann Teoranta v Minister for the Environment and Local Government and SGS (Ireland) Ltd [2003] 2 IR 270, 273 (Denham J referring to the ‘development of specialist law fields of judicial review… [including] … more recently, public contracts’). 63 Order 84A, Rule 3. 64 Order 84, Rule 20(5). 65 Cahill v Sutton [1980] IR 269, 284.

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redress for persons legitimately aggrieved on the one hand, and not interfering with or inappropriately delaying public affairs or projects on the other.

37. The ‘eligible person’ test Regulation 4 of SI 130/2010 creates the concept of ‘an eligible person’, defined in a way which appears to be narrower than ‘sufficient interest’. To be an ‘eligible person’, an applicant must satisfy two requirements:

• (i) the applicant must be someone who ‘has, or has had, an interest in obtaining the reviewable public contract’,66 and

• (ii) the applicant must allege that he has been harmed or is at risk of being harmed by an infringement of Community or EU law in the field of public procurement or of national law transposing any Community or EU law.67

38. Degree of prejudice The requirement to be an ‘eligible person’ suggests that a degree of prejudice must be shown, although, a requirement of ‘harm’ should not extend to refusing to treat a claim as actionable where the provider would not have succeeded in winning the contract.68 Applying such a test at the outset may, in any event, be extremely difficult and risk deciding the entirety of the case at an early stage. In addition, standing should be available for those who have not bid, if this has been caused by, for instance, the contracting authority’s failure to advertise the contract.69 Nevertheless, the intent of the 2010 Remedies Regulations appears to be that standing for seeking review should not be too broad.

39. Dismissal due to lack of standing A respondent contracting authority or notice party (such as the winning tenderer) which considers that the applicant does not have an ‘eligible interest’ may apply at an early stage in the proceedings to have the application dismissed due to lack of standing. Order 84A, Rule 6(2) makes provision for this challenge as follows:

Where a contracting authority or notice party opposes the application on the ground that the applicant is not an eligible person … that contracting authority or notice party may apply to the Court for an order dismissing the application by motion on notice, grounded on an affidavit, in the proceedings commenced by

66 SI 130/2010, Reg 4(a). 67 SI 130/2010, Reg 4(b). SI 131/2010, Reg 4(a) and (b) contains substantially the same test. Prior to the adoption of the 2010 Remedies Regulations, the ‘harm’ requirement had only applied to the specific remedy of damages after a contract had been concluded—as opposed to more general review—and Regulation 7 of the 1994 Public Sector Remedies Regulations (SI No 309/1994 European Communities (Review Procedures for the Award of Public Supply, Public Works and Public Services Contracts) (No. 2) Regulations 1994) and Regulation 6 of the 1994 Utilities Remedies Regulations (SI No 104/1993 European Communities (Review Procedures for the Award of Contracts by Entities operating in the Water, Energy, Transport and Telecommunications Sectors) Regulations 1993) provided that, after the contract had been concluded, damages may have been awarded to ‘any person harmed by an infringement’. 68 Noted in a different context by Arrowsmith, The Law of Public and Utilities Procurement, 2nd edn (2005), para 21.52. 69 Arrowsmith, The Law of Public and Utilities Procurement, 2nd edn (2005), para 21.6; R v Avon County Council Ex p. Terry Adams Ltd [1994] Env LR 478 (CA).

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Originating Notice of Motion, which motion may be made returnable for the return date of the Originating Notice of Motion.

40. Pursuant to the ‘sufficient interest’ test, Irish courts have generally preferred to determine the issue of standing at the substantive hearing, rather than at a preliminary hearing.70 However, given that the ‘eligible person’ is not defined in the Regulations and that the test has not yet been the subject of judicial interpretation, it has been suggested that ‘it may be that there will be greater use of preliminary hearings to determine standing going forward’.71

41. ‘Sufficient interest’ test applies to cases outside the Regulations SI 130/2010 applies only to ‘reviewable contracts’, which are defined as those to which the Public Contracts Award Regulations apply in accordance with Part 2 or Part 9 of those Regulations (or a design contest under Part 10).72 It has been noted73 that this may create complications in practice, as the ‘sufficient interest’ test—which as indicated above is potentially broader in scope (although this has not really been tested)—would continue to apply to applications brought under Order 84 for judicial review of decisions in relation to contracts falling outside the scope of the Public Authorities Contracts Regulations, whether those contracts attract the application of the general Treaty principles due to a cross-border element or whether they are of entirely domestic interest.

2. Regulation 8 Letter

42. Regulation 8 letter The Remedies Regulations impose an obligation on the person seeking review, before proceedings are issued under Order 84A, to notify the contracting authority in writing of ‘the alleged infringement, his or her intention to make an application to the Court and the matters that in his or her opinion constitute the infringement.’74 Article 1(4) of Directive 89/665, as amended, provides that Member States may require that a person wishing to use a review procedure has notified the contracting authority of the alleged infringement and his intention to seek review but it does not refer to an intending applicant informing the contracting authority of ‘the matters that in his or her opinion constitute the infringement’. It is not entirely clear what this obligation adds, or whether a challenger could be penalised for not complying with it or whether by not setting out certain matters constituting an infringement in the Regulation 8 letter, the applicant would be precluded from raising them in its application for review. Some kind of penalty for failing to properly comply with this aspect of the Regulation 8(4) obligation seems unlikely though, given that the requirement to state the matters constituting the

70 See, eg, Ryanair Limited v Minister for Transport [2009] IEHC 171. 71 Donnelly, ‘The New Remedies Landscape: Ireland’ in Fairgrieve and Lichère (eds), Public Procurement Law: Damages as an Effective Remedy (2011) p. 123. 72 SI 130/2010, Reg 2(1). SI 131/2010, Reg 2(1) contains [ ]. 73 Donnelly, n 71 above, p. 123. 74 SI 130/2010, Reg 8(4); SI 131/2010, Reg 8(4).

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infringement, is not actually mentioned in the Remedies Directive.75 In addition, Order 84A, Rule 8 specifically provides for the Court to allow amendments to the statement of grounds (and the statement of the respondent or other parties), which could, presumably, include the addition of alleged infringements and claimed relief that had not been set out in the Regulation 8 letter.

43. Timing of pre-action letter The importance of pre-action letters in procurement challenges was recently considered by the Scottish Court of Session in Clinical Solutions International Ltd v NHS 24,76 which concerned an application by NHS 24 under Regulation 47(10) of The Public Contracts (Scotland) Regulations 2006 (SSI 2006/1) to bring to an end a prohibition on it entering into a contract for the provision of software and related services. In submitting that the applicant did not have a prima facie case, one of the arguments NHS 24 put forward was that the applicant’s pre-action letter was deficient in its content and timing in light of Regulation 47(6), which imposes the obligation on an intending applicant to issue a pre-action letter and which is similar to the requirement in Regulation 8(4) of the Irish Remedies Regulations.77 Lord Hodge was satisfied that the letter’s content was sufficient to inform NHS 24 of a complaint of lack of transparency (the letter stated that the stated that the applicant’s complaint was that NHS 24 had failed to inform it that a services commencement date of April 2013 would be considered acceptable). However, his Lordship was more concerned by the fact that the pre-action letter was not served until 5.13pm, which was after office hours, with the summons itself served at 7.20pm on the same day. Although like the Irish Regulation, the Scottish Regulations did not specify by when the pre-action letter had to be served, it was ‘readily arguable’ that the applicant in this case had failed to give any notice as required by Regulation 47(6) of the Regulations.78 Lord Hodge later concluded that there was a ‘strong case’ that Clinical Solutions had failed to comply with Regulation 47(6) and this was one of the factors leading to the conclusion that it had, on the merits, only a weak prima facie case at best.79 An interim order bringing to an end the prohibition on NHS 24 from entering into the contract was granted.

75 Donnelly, n 71 above, p.121. Cf Luck v Tower Hamlets London Borough Council [2003] EWCA Civ 52 (claimant lost his right to make a claim of a breach of the procurement rules by failing to issue a pre-action letter). 76 [2012] CSOH 10. 77 Regulation 47(6) of the Scottish Regulations provides, in part:

Proceedings under this Part shall not be brought unless - (a) the economic operator bringing the proceedings has informed the contracting authority ... of - (i) the breach or apprehended breach of the duty owed to it in accordance with paragraph (1) or (2); and (ii) its intention to bring proceedings under this Part in respect of that breach or apprehended breach; and (b) the proceedings are brought in accordance with paragraph (7).

78 Clinical Solutions International Limited v NHS 24 [2012] CSOH 10, para 14. 79 Clinical Solutions International Limited v NHS 24 [2012] CSOH 10, paras 19-20.

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3. Pleadings and Commencing Proceedings

44. Statement of grounds Order 84A, Rule 3 sets out in detail the items to be included in the statement of grounds:

(i) the name, address and description of the applicant; (ii) the name, address and description of the contracting authority awarding the contract; (iii) a description of the contract; (iv) the alleged value of the contract; (v) the Regulations and Directive alleged to be applicable; (vi) the date of the award of the contract, date of the decision to award a contract or, as the case may be, the date of the decision referred to in rule 2(c) which is complained of; (vii) a description of the procedure adopted by the contracting authority; (viii) the alleged infringement of the Regulations or the Directives, as the case may be; (ix) the interest which the applicant has or had in obtaining the contract or, as the case may be, the harm or risk of harm to the applicant by the infringement; (x) the date of the notification to the applicant of the alleged infringement; (xi) the date of notification by the applicant to the contracting authority of the alleged infringement and of the applicant’s intention to seek review; (xii) the relief sought (including: any declaration that a contract is ineffective or other declaration; any injunction; any order setting aside any decision; any order affecting any invitation to tender, contract documents or other document relating to a contract award procedure; or damages), and specifying any interim measures sought; (xiii) the grounds upon which each relief is sought; (xiv) the name, address and description of any affected parties; (xv) the name and registered place of business of the applicant's solicitors (if any); and (xvi) the applicant’s address for service within the jurisdiction (if acting in person).

45. As can be seen from this list, a good deal of information is required to go into the statement of grounds. Essentially, a full description of the background to the claim, the legal grounds relied on and the relief sought must be set out, as well as various other details such as names and dates. Drafting the statement of grounds will usually involve a considerable amount of preparation.

46. Verifying affidavit Order 84A, Rule 3 also provides that the statement of grounds ‘shall be verified by an affidavit sworn by or on behalf of the applicant which verifies all of the facts relied upon and shall exhibit the notification to the contracting authority of the infringement alleged by the applicant and of his intention to seek a review and the response of the contracting authority thereto (if any).’ In practice, there may be a considerable overlap between the contents of the statement of grounds and verifying affidavit, as each document will often set out the background circumstances and details of the alleged breaches of the procurement rules. In other situations, it may be possible to draft a very short verifying affidavit, which simply verifies the facts as set out in the statement of grounds. The Regulation 8 letter and any response by the contracting authority must be exhibited to the affidavit.

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47. Absence of Leave Requirement In conventional judicial review proceedings, the applicant is required to obtain leave to apply for judicial review at the outset. Such applications are made ex parte before a judge of the High Court.80 In respect of applications to which the Remedies Regulations apply, Order 84A does not require that the applicant seek ‘leave to apply’. Proceedings are therefore brought under the Remedies Regulations without seeking leave in advance. To avoid any confusion in the Central Office about the requirement for leave, it may be preferable to entitled proceedings brought under Order 84A ‘In the matter of Order 84A etc’ rather than as ‘Judicial Review’ proceedings.

48. Statement of opposition Order 84A, Rule 6 requires that if it seeks to oppose the application, the respondent contracting authority and any notice party must file a statement of opposition, together with a verifying affidavit. Order 84A highlights the importance of the role played by notice parties, above that which would generally apply in High Court proceedings, by specifying that notice parties must file a statement of opposition where they oppose the application. Where a contract award is challenged, it can be expected that the winning tenderer will usually be a notice party to the proceedings and may play a significant role in defending the action. The statement of opposition should set out ‘concisely the grounds for such opposition and if any facts are relied on therein an affidavit verifying such facts’.81 A copy of the statement of opposition and affidavit must be served on all other parties not later than 7 days from the date of service of the notice of motion or such other period as the Court may direct.82

49. Arguments that respondents and notice parties may typically wish to consider adding to the statement of opposition, in addition to those rebutting the substance of the claim that the procurement rules have been breached, include, among others: challenges to the Court’s jurisdiction to grant some or all of the relief claimed; arguments to the effect that the applicant is, in effect, impermissibly seeking to appeal the decision of the contracting authority; any challenge that the application is time barred; and any argument that the applicant does not have standing.

50. Amendment of pleadings Order 84A, Rule 8 provides for amendment of pleadings, as follows:

(1) The Court may on the hearing of the Originating Notice of Motion allow the applicant or any other party to amend his statement whether by specifying different or additional grounds of relief or opposition or otherwise on such terms, if any, as it thinks fit and may allow further affidavits to be filed if they deal with new matters referred to in an affidavit of any other party to the application. (2) Where the applicant or any other party intends to apply for leave to amend his statement or to use further affidavits he shall give notice of his intention and of the proposed amendment to every other party.

80 Order 84, Rule 20(2). 81 Order 84A, Rule 6(1). 82 Order 84A, Rule 6(1).

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51. This rule only deals with amendment of pleadings ‘on the hearing of the Originating Notice of Motion’ which would appear to mean on the hearing of the substantive action, rather than on any return date of the notice of motion. This would obviously be a late stage at which to permit amended pleadings, when the parties may already have gone through the discovery process and other stages of trial preparation. One might expect that time limit issues could arise were an applicant to seek to amend its pleadings at this stage and an extension of time under Order 84A, Rule 4(2) might be required (although the Court would presumably deal with this question when hearing the application for the amendment).

52. Nothing is said in Order 84A about amendments to pleadings before the hearing of the Originating Notice of Motion.83 This is similar to the position in conventional judicial review proceedings, with Order 84, Rule 23(2) providing that the court may allow amendments of statements ‘on the hearing of the motion or summons’. In Molloy v Governor of Limerick Prison84 the Supreme Court rejected an earlier stricter approach which had suggested there was no jurisdiction to allow amendments of pleadings before the hearing, holding that the High Court could allow amendments once a notice of motion had passed its return date. It should be remembered when comparing the two rules, that a particular concern in the context of amendments in proceedings brought under Order 84 is the fact that an applicant will have had to seek leave in respect of its original statement. The courts have therefore placed a relatively high burden on applicants seeking to amend their pleadings in conventional judicial review cases.85 Given that there is no leave requirement, the context is slightly different under Order 84A. Nevertheless, in light of the policy imperative of rapid review of procurement decisions and the concomitant strict time limits that apply, it would be unsurprising were the courts to adopt a relatively strict approach to amendment applications in Order 84A proceedings. Of course for procurement proceedings falling outside Order 84A and which are brought as conventional judicial review applications under Order 84, the amendment rules in Order 84 will apply.

53. Hearings and Case Management Applications brought under Order 84A are made returnable to the Non Jury List in the High Court, which is currently managed by the President of the High Court. An application to enter the proceedings in the Commercial List of the High Court is often brought and procurement proceedings are regularly admitted to the Commercial List. In order to be eligible to be admitted into the Commercial List (and the judge managing that list ultimately has discretion as to whether a case is entered), the proceedings must qualify as ‘commercial proceedings’ as that term is defined in Order 63A of the Rules of the Superior Courts. Procurement proceedings will invariably qualify as not only do claims with a value of €1

83 The rules on amendment of pleadings in ordinary judicial review proceedings are similar; see Order 84, Rule 23(2), (3). 84 Supreme Court, 12 July 1991. 85 For discussion of the relevant case law, see Delany and McGrath, Civil Procedure in the Superior Courts, 3rd ed (2012), paras 30-124 – 30-135.

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million come within the definition of commercial proceedings86 but also ‘any appeal from, or application for judicial review of, a decision or determination made or a direction given by a person or body authorised by statute to make such decision or determination’ where the Judge considers the case appropriate for entry87 and the more general ‘proceedings in respect of any other claim or counterclaim ... which the Judge of the Commercial List, having regard to the commercial and any other aspect thereof, considers appropriate for entry in the Commercial List’.88 Major benefits of the proceedings being admitted to the Commercial List include the benefit of case management and a swift timetable. Having said this, the Non Jury List also operates very efficiently and hearing dates not long into the future may also be obtainable in that list.

54. Obligation to follow Remedies Regulations if applicable? If the Remedies Regulations apply, must an applicant confine itself to using the Regulations if it is to bring proceedings? Or would it be open to an applicant in such a position to bring proceedings by way of normal judicial review?89 This question was recently addressed by the English Court of Appeal in Hossack,90 in which a solicitor sought permission to apply for judicial review of the Legal Services Commission decision to reject the tender of her firm. The normal answer in England is that judicial review is not available where there is an alternative statutory remedy. Here, however, the Court of Appeal held that an application for review of a contract to which the 2006 UK Public Contracts Regulations applied could be brought by way of ordinary judicial review. If Hossack were to succeed in proceedings for judicial review, the LSC’s rejection of her tender could be quashed and a re-tender ordered. It was not clear, on the particular facts (with different remedies available depending on whether a contract had been entered into or not and uncertainty about whether a contract had been entered into),91 that the same result could be achieved under the relevant Regulations where there was a risk that the only remedy was damages.92 Permission to apply for judicial review was therefore granted. However the applicant was ultimately unsuccessful in her application for judicial review.93

86 Order 63A, Rule 1(a). 87 Order 63A, Rule 1(g). 88 Order 63A, Rule 1(b). 89 See Release Speech Therapy Ltd v Health Service Executive [2011] IEHC 57, which concerned a Part B services contract. The applicant sought certiorari of the respondent’s decision that its tender was unsuccessful, by way of ordinary judicial review proceedings, initiated in 2008. 90 R(Hossack) v Legal Services Commission [2011] EWCA Civ 788. 91 It was arguable both that a ‘contract’ had been entered into and that it had not been, with the consequence that it was not entirely clear whether Regulation 47I of the Public Contracts Regulations 2006 (which empowers the court to set aside a contract or action but which only applies where ‘the contract has not yet been entered into’) or Regulation 47J (which did not provide a power of set aside, only providing for remedies of ineffectiveness, penalties and damages and which applied where the contract had been entered into) was applicable. See R(Hossack) v Legal Services Commission [2011] EWCA Civ 788, para 23, 38-42 (Richards LJ). 92 R(Hossack) v Legal Services Commission [2011] EWCA Civ 788, paras 38-42 (Richards LJ). 93 Hossacks v Legal Services Commission [2011] EWHC 2700 (Admin).

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55. Given that under the Irish Remedies Regulations, the Court is empowered to set aside or vary a decision, apparently whether or not a contract has been entered into,94 there is arguably little or no advantage (in terms of remedies) to an applicant in proceeding by way of ordinary judicial review rather than under the Remedies Regulations. Were an applicant to seek to proceed by way of judicial review under Order 84 rather than under the Remedies Regulations and Order 84A in order to avoid the stricter time limits contained in the Remedies Regulations (30 days versus three months95), it is doubtful that a Court would permit the time limits to be circumvented in this way.

56. It may of course be the case that an applicant wishes to rely on grounds of review that do not fall within the ambit of public procurement law, but are more properly, for want of a better description, ‘ordinary judicial review points’ – claims of irrelevant considerations, acting ultra vires, breach of a legitimate expectation etc. Is it appropriate to add these administrative law grounds to Order 84A proceedings or should separate judicial review proceedings be brought under Order 84, with the possibility of subsequently joining the two sets of proceedings? In Halo,96 the English High Court indicated, in an interlocutory ruling, that a number of claims (challenging the government’s policy of linking landmine clearance funding to development benefits) brought in proceedings under the UK procurement Regulations were properly the subject of an application for judicial review before the Administrative Court (although as pleaded, the claims did not raise a serious issue to be tried and a judicial review application was probably out of time). The Irish courts may take a more generous view of the incorporation into applications under Order 84A of administrative law claims, not least because the remedies that may be granted by the High Court under the Remedies Regulations are not limited: Regulation 14 of SI 130/2010 stating that nothing in the Regulations ‘affects any power of the Court to grant any other remedy in relation to a contract’.97

B. Applications outside the Remedies Regulations

57. Application under Order 84 The most obvious route (though not necessarily the only one) for bringing an application for review of a procurement decision outside the Remedies Regulations is by way of judicial review. A typical application might seek certiorari of the contracting authority’s decision to award a contract or take a particular step in the process. The rules of court governing such conventional judicial review applications are contained in Order 84 of the Rules of the Superior Courts. Order 84 was

94 SI 130/2010, Reg 9; SI 131/2010, Reg 9. This was a complicating point in the Hossack case 95 Order 84, Rule 21(1). 96 Halo Trust v Secretary of State for International Development [2011] EWHC 87 (TCC). 97 Cf the approach of the Irish courts to the question whether a judicial review application can be brought where a statutory appeal is available. See, eg, O’Donnell v Tipperary (South Riding) County Council [2005] IESC 18, [2005] 2 IR 483 (although subject to appeal before the Employment Appeals Tribunal, the respondent’s decision to terminate the applicant’s employment was amenable to judicial review; however, on the particular facts, the more appropriate remedy was an appeal to the Employment Appeals Tribunal).

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recently amended by SI 691 of 2011, Rules of the Superior Courts (Judicial Review) 2011. These new rules have brought about a number of changes to judicial review proceedings, including in relation to time limits, issues arising at the leave stage, making provision for the holding of an inter partes hearing at the leave stage, provision for telescoped hearings (where the leave application is treated as the application for judicial review) and issues in relation to the service of pleadings and legal submissions.98

58. Requirement to seek leave Unlike applications under the Remedies Regulations, there is a requirement in conventional judicial review applications under Order 84 to obtain ‘leave to apply’ for judicial review. Pursuant to Order 84, Rule 20, the application for leave is made by motion ex parte grounded on a notice, which must set out a statement of each relief sought and the particular grounds upon which each relief is sought and an affidavit verifying the facts contained in the notice. This is not altogether different from the statement of grounds and verifying affidavit required in Order 84A applications.

59. Sufficient interest Leave to apply for judicial review will not be granted unless the Court considers that the applicant has a ‘sufficient interest’ in the matter to which the application relates.99 The meaning of ‘sufficient interest’ and the difference between it and the ‘eligible person’ requirement under Order 84A, has been discussed above.100

98 For an overview of the changes brought about by SI 691 of 2011, see Biehler, ‘Judicial Review – The Rules of the Superior Courts (Judicial Review 2011) – The Amended Order 84’, Judicial Review Conference, Trinity College, Dublin (11 February 2012). Coverage of the new rules is incorporated into Chapter 30 on Judicial Review in Delany and McGrath, Civil Procedure in the Superior Courts, 3rd ed (2012). 99 Order 84, Rule 20(4). 100 See para 36 above. On judicial review procedure generally, see Hogan and Morgan, Administrative Law in Ireland, 4th edn (2010) paras 16.39 – 16.119.

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3. Time Limits 60. Introduction This section considers the time limits for initiating public

procurement proceedings. Section A discusses the time limits contained in the Remedies Regulations. The meaning of the provisions on time limits and their compatibility with EU law is examined. Section B considers the time limits for initiating procurement proceedings that fall outside the scope of the Remedies Regulations. Section C considers applications for an extension of time.

A. Time Limits under the Remedies Regulations

1. Regulation 7(2)

61. Regulation 7(2) of the Remedies Regulations The general time limit101 for bringing proceedings under SI 130/2010 and SI 131/2010 is the same and is stated in Regulation 7(2) of each set of Regulations as follows:

An application referred to in subparagraph (a) or (b) of Regulation 8(1) shall be made within 30 calendar days after the applicant was notified of the decision, or knew or ought to have known of the infringement alleged in the application.102

62. Regulation 8(1)(a) refers to the ability of an eligible person to apply to the Court for an interlocutory order to correct an alleged infringement or prevent further damage to the eligible person’s interests, while Regulation 8(1)(b) refers to applications for review of the contracting authority’s decision to award the contract to a particular tenderer or candidate.

63. 30-day time limit A striking feature of Regulation 7(2) of the Remedies Regulations is that the time limit, 30 days, is short, and noticeably shorter than the three-month time limit applicable to judicial review applications brought under Order 84. A potential applicant will not have much time to decide whether to bring proceedings. It is often the case that a disappointed tenderer engages in correspondence with the contracting authority when it considers that there may have been a breach of the procurement rules. However, time

101 There are special rules applicable to the time limit for an application for ineffectiveness of a contract. See para 81 below. 102 Cf the recently adopted UK Public Procurement (Miscellaneous Amendments) Regulations 2011, Regulation 5(4) of which provides that a claim must be brought within 30 days from the ‘date of knowledge’, defined as ‘the date when the economic operator first knew or ought to have known that grounds for the bringing of the proceedings had arisen’ (emphasis added). On the interpretation of the phrase, ‘date when grounds for bringing of proceedings first arose’ before the adoption of the 2011 Regulations, see Sita UK Ltd v Greater Manchester Waste Disposal Authority [2010] EWHC 680 (Ch), [2010] 2 CMLR 1283, Mann J holding (at para 127) that the expression ‘grounds for bringing proceedings’ was effectively synonymous with ‘infringement’ in a broad sense and (at para 130) that the test of the degree of knowledge required to trigger the time limit was ‘a knowledge of facts which apparently clearly indicate, though they need not absolutely prove, an infringement’. This test as to the relevant standard of knowledge was confirmed by a majority of the Court of Appeal in Sita UK Ltd v Greater Manchester Waste Disposal Authority [2011] EWCA Civ 156, para 31 (Elias LJ), para 90 (Rimer LJ).

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continues to run during such a period. Even if such dialogue with the contracting authority is ongoing, proceedings should be brought in order not to exceed the time limit.103

64. Meaning of Regulation 7(2) The time limit provision in Regulation 7(2) has not yet been interpreted by the courts and the wording provides scope for argument about its meaning. On one reading, the applicant must bring proceedings at the earlier of 30 days from when he knew or ought to have known of the alleged infringement of the procurement rules or 30 days from the date of the award decision. However, words such as ‘at the earlier’ or ‘whichever is earlier’ are not used. As such, it may be arguable that the applicant can wait until 30 days after the award decision, no matter when the applicant knew or ought to have known of the alleged breach. Furthermore, any interpretation that the earlier of the two dates applies in a situation where the award decision is made but the applicant does not know (or ought to know) of an infringement until after 30 days from the award decision may be problematic. An applicant might have no reason to suspect an infringement at the date of being notified of an award decision where details of an infringement are not apparent at that stage but subsequently revealed to him. This could obviously occur more than 30 days after the date of the award decision. It would arguably be a breach of the principle of effectiveness were an applicant in this situation time-barred. Of course, the remedies available at this stage, assuming proceedings were within the time limit, would depend on whether the contract had been concluded. The fact that a contract can be concluded once the applicable standstill period has passed, is, in a sense, a protection for a contracting authority against what might otherwise be seen as an open-ended time limit for bringing proceedings.

65. What is a ‘decision’? Further uncertainty arises from the fact that the meaning of the word ‘decision’ in Regulation 7(2) is not made clear. Is this the award decision or could it refer to any type of decision made by the contracting authority during the tender process? An example would be a decision by a contracting authority to include selection criteria which it is then argued are in breach of the procurement rules. The stipulation in Regulation 3 of SI 130/2010 that the Regulations apply to decisions taken by contracting authorities ‘in relation to reviewable contracts’ does not shed a great deal of light on the meaning of a decision in Regulation 7(2).

66. From when does time run? The exact date from which the 30 calendar days runs is also not clear. Assuming the date of the decision to be the trigger, the applicant has 30 calendar days ‘after’ he was notified of the decision in which

103 On the limits of engaging in correspondence with the relevant public authority as a justification for delay in bringing judicial review proceedings generally, see McCarthy v Irish Prison Service [2009] IEHC 311 (McMahon J) (‘The excuse advanced by the applicant in these proceedings is that he was in correspondence with the respondents and was trying to resolve the matter amicably. Both of these are laudable enough goals, but it cannot be the case that simply by corresponding with the respondents the applicant indefinitely extends the period within which he is obliged to commence proceedings under the Rules of the Superior Courts. If the case were otherwise, then an applicant could extend the time indefinitely, merely by engaging in letter writing’).

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to take proceedings. It is not clear, on its face, whether the day of notification of the decision is included in this computation of time, or whether time only begins to run on the day after the decision was notified.

67. Considering the various uncertainties in the wording of Regulation 7(2), it is tempting to say that matters might have been clearer if the time limit was linked to when the applicant know or ought to have know of an infringement, and the ‘decision’ was not included as part of the test.

2. Previous case law on time limits

68. Previous case law on time limits An interpretation of Regulation 7(2) to the effect that it allows an applicant to wait for the award decision, no matter when he knew or ought to have known of the alleged infringement of which complaint is made, would fly in the face of previous case law on time limits in procurement cases. The case law has emphasised that where the grounds for bringing proceedings arose during the procurement process, time starts to run and an applicant cannot wait until the award decision is made before bringing proceedings in respect of a breach that occurred earlier in the process.

69. Different wording in Old Order 84A It should be remembered, in considering the relevance of the earlier Irish case law discussed below, that it concerned the Old Order 84A, which applied the traditional time limit in judicial review, as it then was, to procurement cases. This rule, which provided that an application be made ‘at the earliest opportunity and in any event within three months of the date when grounds for the application first arose, unless the court considers that there is good reason for extending such period’ was found by the Court of Justice in Commission v Ireland104 to breach the principle of legal certainty.105 Regulation 7(2) is worded differently (partly, one assumes, with the aim of providing a time limit that is legally certain, although whether it achieves this goal is questionable) and this should be considered when drawing guidance from this earlier case law.

70. ‘Absurdity’ of time limit running only from award It was argued in SIAC Construction Limited v National Roads Authority106 that since the language of Old Order 84A referred only to, ‘review of a decision to award or the award of a public contract’, the time limit should run from the award decision. Kelly J rejected this argument and held that time ran from the particular challenged act or decision in the award procedure—in that case, the decision to use the negotiated award procedure—and not from the award decision at the end of the procedure. To hold otherwise would mean that an applicant might be able

104 Case C-456/08 Commission v Ireland, judgment of 28 January 2010. 105 Case C-456/08 Commission v Ireland, para 74 (‘the wording of Order 84A(4) of the RSC, which provides that all relevant applications ‘shall be made at the earliest opportunity and in any event within three months’ gives rise to uncertainty’). 106 [2004] IEHC 128.

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to wait a number of years from the alleged infringement before bringing proceedings, a situation that would have been ‘absurd’.107

71. Delay until award decision not justified In practice, few tenderers will wish to bring proceedings for a breach that occurs during the process, when there is still a possibility of obtaining the contract.108 However, that is not a reason that has been held to justify delay. That an applicant cannot wait until the outcome of the procurement process to bring a challenge when the grounds for bringing the challenge have arisen before the final decision and the time limit has expired, was emphasised by Weatherup J in Traffic Signs and Equipment Ltd v Department for Regional Development 109:

A tenderer considered to be at risk of loss or damage as a consequence of an alleged infringement must not wait until he discovers whether he has succeeded and only then come forward. Time is running even though there is a prospect of success.110

72. Policy of urgency underpinning procurement review Even though the constitutional right of access to the courts has been considered a factor in Irish cases on time limits,111 the Supreme Court has taken a strict approach to the application of time limits in procurement cases. In Dekra Éireann Teoranta v Minister for the Environment and Local Government112, a case involving the procurement of the national car-testing regime, Denham J referred to the ‘essential feature’ of ‘a policy of urgency and rapidity’113 which underpinned the EU and Superior Court Rules on public procurement review and added that ‘since urgency and rapidity is an underpinning policy of applications regarding public contracts, the test requires that such applications be made rapidly and an applicant must explain reasonably any delay’.114 This policy was justified by concerns about ‘the prejudice to the parties and the State in delayed proceedings’.115 Fennelly J observed in Dekra that ‘public

107 SIAC Construction Ltd v National Roads Authority [2004] IEHC 128. See also Danninger v Bus Átha Cliath [2007] IEHC 29, para 56. 108 Although one can imagine situations where a tenderer might be prepared to consider bringing proceedings at a stage earlier than after the award decision had been made, for example, where such an applicant considered that the award criteria published by a contracting authority were in breach of the procurement rules and clearly intended to favour another tenderer. It might be obvious to the aggrieved tenderer in such a situation that it would not have a chance of ultimately obtaining the contract. Cf. Exel Europe Ltd v University Hospitals Coventry and Warwickshire NHS Trust [2010] EWHC 3332 (TCC), in which the alleged infringements of the procurement rules took place during the process and the applicant withdrew from the procurement before the award decision was made; however, proceedings were not brought until after that decision and many of the claims were time-barred. 109 [2010] NIQB 138. 110 [2010] NIQB 138, para 20. A similarly strict approach to time limits has been adopted in recent English decisions, for example, in SITA UK Ltd v Greater Manchester Waste Disposal Authority [2011] EWCA Civ 156 (particularly at paras 19-30) and Mermec UK Ltd v Network Rail Infrastructure Ltd. [2011] EWHC 1847 (TCC) (particularly at para 22). 111 See, eg, White v Dublin City Council [2004] 1 IR 545. 112 [2003] 2 IR 270. 113 [2003] 2 IR 270, 283. 114 [2003] 2 IR 270, 286. 115 [2003] 2 IR 270, 286.

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procurement decisions are peculiarly appropriate subject matter for a comparatively strict approach to time limits. They relate to decisions in a commercial field, where there should be very little excuse for delay’.116 More generally, it is worth noting that the approach of the courts to delay appears to have become more strict recently, as exemplified by three recent judgments delivered by Hogan J.117

73. Remedies Directive stipulation about rapid review Aside from guidance that may be drawn from decisions on time limits in respect of previous rules and in other jurisdictions, the Remedies Regulations must be read, to the extent possible, in light of the wording and purpose of the Remedies Directive. The importance of requiring that aggrieved tenderers rapidly seek review is emphasised in the Remedies Directives, with the stipulation that Member States must take any measures necessary to ensure that decisions taken by contracting authorities may be reviewed ‘effectively, and in particular, as rapidly as possible’.118 This tends to support the continued strict approach of the courts to time limit issues in procurement cases.

74. Time limits apply vis-à-vis particular grounds The time limit in the Remedies Regulations almost certainly applies separately vis-à-vis each particular alleged breach of the procurement rules. If this were not so, an applicant would be able to ‘piggy back’ time-barred grounds onto those that were brought in time, a situation which would also seem, in the parlance of Kelly J in SIAC to be ‘absurd’. It may therefore be the case, in an application alleging several different breaches that were known to the applicant at different times, that some grounds will be time barred while others will have been brought in time. As will be seen below, in deciding whether to extend time, the courts have considered each ground separately.119

75. Triggering the Time Limit A crucial question, which arises frequently with respect to time limits more generally, is at what stage the time limit starts to run. In applying the Old Order 84A, which referred to the date ‘when grounds for the application first arose’, knowledge of the applicant was found not necessary for time to run. It was held in Veolia that time would run from the date when the events giving rise to the grounds upon which the challenge was brought occurred, rather than at the point when the relevant bidder acquired knowledge of the events.120

116 [2003] 2 IR 270, 286, 304. See also the judgment of Clarke J in Veolia Water UK plc v Fingal County Council [2007] 1 IR 690, which also adopts a strict approach to time. 117 See Doyle v Gibney [2011] IEHC 10; Donnellan v Westport Textiles Ltd. [2011] IEHC 11; Quinn v Faulkner [2011] IEHC 103. See also the judgment of Peart J in Mulcahy v CIE [2011] IEHC 292. 118 Directive 89/665, as amended, Art 1(1). 119 See Veolia Water UK plc v Fingal County Council (No 1) [2007] 1 IR 690, para 54. 120 Veolia [2007] 1 IR 690, 706-707, para 48. See generally, Canny, Limitation of Actions (2010) Ch 7. On the running of the limitation period in competition law cases, see Dunleavy, Competition Law - A Practitioner’s Guide (2010) pp 679-682.

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76. Uniplex case This question was examined by the Court of Justice in Uniplex121 (decided on the same day as Case C-456/08 Commission v Ireland) which involved a preliminary reference in respect of an equivalent understanding in English law that time ran from the date on which the ground of challenge arose. Emphasising that a disappointed tenderer could only decide whether there might have been an infringement of procurement law once it had been informed of the reasons for its elimination (and not merely the fact of its elimination), the Court held that effective procedures for review could only be guaranteed ‘if the periods laid down for bringing such proceedings start to run only from the date on which the claimant knew, or ought to have known, of the alleged infringement of those provisions’.122 EU law therefore appears to mandate that the running of the time limit be tied to the applicant’s knowledge (constructive or actual) of the infringement.

77. Degree of knowledge required In Sita, the English High Court123 and Court of Appeal124 examined the degree of knowledge that was required before time should start to run. The respondent contracting authority sought to strike out a claim of breach of the procurement rules on the ground that it was time-barred under Regulation 32(4)(b) of the Public Services Contracts Regulations 1993, which required proceedings to be brought promptly and, in any event, within three months from the date when grounds for the bringing of the proceedings first arose, unless the court considered that there was good reason for an extension of time. It was argued by the applicant that a litigant only knows if it has ‘grounds for the bringing of the proceedings’ if it can tell whether it has ‘a genuine prospect of recovering damages’. Rejecting this argument, Mann J at first instance held that the expression ‘grounds for bringing proceedings’ was effectively synonymous with ‘infringement’ in a broad sense and that the test of the degree of knowledge required to trigger the time limit was ‘a knowledge of facts which apparently clearly indicate, though they need not absolutely prove, an infringement’.125 This test as to the relevant standard of knowledge was adopted by a majority of the Court of Appeal (Rimer and Elias LJJ).126 Arden LJ dissented on this particular point,127 not putting forward her own test but suggesting that the Court should adhere, as far as possible, to the test set out at paragraphs 30 and 31 of the Court of Justice’s decision in Uniplex,128 where it stated that time starts to run once the unsuccessful tenderer can ‘come to an informed view as to whether there has been an infringement of the

121 Case C-406/08 Uniplex v NHS Business Services Authority, judgment of 28 January 2010. 122 Case C-406/08 Uniplex, para 32 (see also para 50). 123 Sita UK Ltd v Greater Manchester Waste Disposal Authority [2010] EWHC 680 (Ch), [2010] 2 CMLR 1283. 124 Sita UK Ltd v Greater Manchester Waste Disposal Authority [2011] EWCA Civ 156, [2011] 2 CMLR 829. 125 Sita UK Ltd v Greater Manchester Waste Disposal Authority [2010] EWHC 680 (Ch), [2010] 2 CMLR 1283, paras 127-130. 126 Sita UK Ltd v Greater Manchester Waste Disposal Authority [2011] EWCA Civ 156, para 31 (Elias LJ), para 90 (Rimer LJ). 127 Sita UK Ltd v Greater Manchester Waste Disposal Authority [2011] EWCA Civ 156, paras 100-105. 128 Case C-406/08 Uniplex v NHS Business Services Authority, judgment of 28 January 2010.

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applicable provisions and as to the appropriateness of bringing proceedings’. As Elias and Rimer LJJ both explained, while the test was the one in paragraph 31 of Uniplex, the difficulty was that the Court of Justice left unexplained how well informed the informed view as to whether there had been an infringement had to be.129 In those circumstances, it was legitimate for the national court to consider previous case law on limitation issues ‘in arriving at a workable, practical, objective test that is consistent with the general guidance provided in Uniplex’130 and on that basis, Mann J’s test was adopted by the majority.131

78. It remains to be seen how the Irish courts approach the question of when time starts to run and what degree of knowledge is required. It should be remembered that there is also the possibility for the Court to extend time under Order 84A, Rule 4 where there is ‘good reason’ and this provision may be useful where, for example, the degree of knowledge of the applicant raises difficulties or is altered by subsequent disclosure from the contracting authority.

3. Compatibility of Regulation 7(2) with EU law

79. Compatibility of Regulation 7(2) with EU law While one of the goals of Regulation 7(2) appears to have been, with the adoption of the 30-day period, to provide certainty about the time limit for procurement proceedings, a potential concern is that the provision is in fact legally uncertain and arguably in breach of EU law. Comments have already been made at paragraphs 61 et seq. about what Regulation 7(2) means, and as discussed above, it can be argued that the provision is uncertain as to when the time limit is triggered by the ‘decision’ (whatever decisions are covered by this term) as opposed to the knowledge (actual or constructive) of the applicant. Taking the example of an alleged infringement that has taken place during the tender process and well in advance of the award decision, while previous case law is clear that it would be ‘absurd’ to start the time limit for this alleged infringement from the date of the award decision, the language of Regulation 7(2) is not at all clear in this respect, arguably offering a choice to the applicant between having the time limit run from the date of the award decision or the date of knowledge (of course, one could argue that the ‘decision’ here should be read to mean the ‘decision’ of the contracting authority that occurred during the process and not the tender decision). While it is difficult to countenance that a court would accept such an interpretation, in particular in light of the previous case law and the policy or rapidity underpinning procurement review, the point is simply

129 Sita UK Ltd v Greater Manchester Waste Disposal Authority [2011] EWCA Civ 156, para 23 (Elias LJ), para 92 (Rimer LJ). 130 Sita UK Ltd v Greater Manchester Waste Disposal Authority [2011] EWCA Civ 156, para 93 (Rimer LJ). 131 See, for recent consideration of this issue in an interlocutory context, Clinical Solutions International Ltd v NHS 24 [2012] CSOH 10 (notification that it was not the preferred bidder did not give the applicant information from which it could have inferred an infringement of the public procurement rules through a lack of transparency and so the respondent had not demonstrated that the claim was time barred).

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made to illustrate the difficulty in the language itself.132 A similar difficulty also present itself in respect of breaches that occur, and only come to the knowledge of the applicant, after the award decision is made. It does not seem unreasonable, again looking at the wording of Regulation 7(2) and in particular the conjunction ‘or’, to think that the time limit only starts from knowledge.

80. EU case law on legal certainty of time limits The Court of Justice held in Uniplex and Commission v Ireland was that ‘Member States have an obligation to establish a system of limitation periods that is sufficiently precise, clear and foreseeable to enable individuals to ascertain their rights and obligations’.133 Arguably, the language of Regulation 7(2) does not satisfy this standard.134 Again though, it can be argued the other way that, in light of well established case law on time limits in procurement challenges, the intention of Regulation 7(2) is obvious and that, for example, an interpretation which allows an applicant to wait until the award decision to bring proceedings on the basis of alleged infringements that may have occurred months earlier, goes against the policy of rapidity of review of public procurement decisions. Nevertheless, it is worth remembering here that the Court of Justice has stated that the ‘objective of rapidity does not permit Member States to disregard the principle of effectiveness’.135 It would obviously have been preferable if Regulation 7(2) had been drafted in clearer terms.

4. Applications for Ineffectiveness

81. Applications for ineffectiveness Directive 2007/66 provides for illegally awarded contracts to be made ineffective. The main purpose of this remedy is to combat the illegal direct award of public contracts.136 Article 2f of Directive 2007/66 sets out time limits that Member States may apply to applications for ineffectiveness and the Irish time limits for ineffectiveness applications are found in Regulation 7(3) of the Remedies Regulations.

82. Time limit where contract award notice published Where a contract award notice is published, and in the case of a contract awarded without prior publication of a contract notice, the contract award notice justifies the decision not to publish a contract notice, the application must be brought within 30 calendar days beginning with the day after the (contract award) notice was

132 It could even be argued that the more generous interpretation of the time limit in this context is bolstered by the fact that the relevant language in Regulation 7(2) (notification of decision or knowledge of infringement) does not follow the sequence of the types of challenge provided for in Regulation 8(1)(a) (interlocutory orders) and (b) (review of the decision). 133 Case C-406/08 Uniplex, para 39; see also, C-456/08 Commission v Ireland, para 61. 134 If the compatibility of Regulation 7(2) (or any of the provisions of the Remedies Regulations) with EU law were to be challenged in proceedings, it may be prudent to consider whether Ireland and the Attorney General should be joined as respondents. On challenging a national Regulation implementing a EU directive, see An Taoiseach v Commissioner for Environmental Information [2010] IEHC 241, paras 7.1-7.11 (currently on appeal to the Supreme Court). 135 Case C-456/08 Commission v Ireland, para 61. 136 Directive 2007/66, Recital 13.

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published.137 Similarly, a 30-day period applies where tenderers or candidates concerned are informed of the conclusion of the contract, provided that they are provided with a summary of reasons in accordance with Regulation 6(2).138

83. Time limit where no contract award notice published Where no contract award notice is published, Directive 2007/66 requires a limitation period of at least six months with effect from the day following the date of the conclusion of the contract139 and this is provided for in the Remedies Regulations.140 It is unclear why such a long period is required by Directive 2007/66 in the case of applications for ineffectiveness where the contract award notice has not been published. This may partly be motivated by a desire to ensure that challenges to illegal direct awards, considered the most serious breaches of EU law in the field of public procurement,141 are not frustrated by short time limits and are open to challenge in a way that is ‘the most effective way to restore competition and to create new business opportunities for those economic operators which have been deprived illegally of their opportunity to compete’.142 Such a long period does go against the policy of rapidity of review of public procurement decisions however.

B. Time Limits outside the Remedies Regulations

84. Time Limit in Order 84 Assuming that an application for review of a public contract outside of the Remedies Regulations is constituted as an action for judicial review under Order 84 of the Rules of the Superior Courts, then according to Order 84, Rule 21(1), the application is to be made ‘within three months from the date when the grounds for the application first arose’. Order 84, Rule 21(2) goes on to say that where certiorari is sought in respect of ‘any judgment, order, conviction or other proceeding, the date when the grounds for the application first arose shall be taken to be the date of the judgment, order, conviction or proceeding’. Order 84, Rule 21(6) empowers the Court to dismiss an application for judicial review ‘on the ground that the applicant’s delay in applying for leave to apply for judicial review (even if otherwise within the period prescribed by sub-rule (1) or within an extended period allowed by an order made in accordance with sub-rule (3)) has caused or is likely to cause prejudice to a respondent or third party’.

137 SI 130/2010, Reg 7(3)(a); SI 131/2010, Reg 7(3)(a). Note a degree of potential confusion surrounding this time limit caused by Regulation 11(3), which provides that the Court is not obliged to declare a contract ineffective where, inter alia, a notice in compliance with Regulation 1150/2009 is published. It is not expressly clear from Regulation 7(3) whether such a notice would be sufficient to trigger the 30-day time limit. 138 SI 130/2010, Reg 7(3)(b); SI 131/2010, Reg 7(3)(b). See similarly Reg 7(3)(c) in respect of a contract based on a framework agreement or a dynamic purchasing system. 139 Directive 2007/66, Art 2f(1)(b). 140 SI 130/2010, Reg 7(6); SI 131/2010, Reg 7(6). 141 See Directive 2007/66, Recital 13. 142 Directive 2007/66, Recital 14.

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85. In light of the case law on time limits in public procurement law, in particular the Court of Justice decisions in Uniplex and Commission v Ireland, already discussed above, it seems to be a not unreasonable proposition that the court would apply the time limit in Order 84, Rule 21(1) to the time when the applicant knew or ought to have of the infringement. Perhaps a more difficult question is whether, where certiorari of the contracting decision is sought, Order 84, Rule 21(2) applies to tie the time limit to the date of the contracting authorities decision. This would depend on whether the decision of the contracting authority came within the meaning of an ‘other proceeding’. It also seems fair to suggest that even if this were the case, the time limit here could only apply in respect of the award decision, i.e. a decision taken earlier in the tender process is unlikely to be considered a ‘proceeding’ within the meaning of Order 84, Rule 21(2) (the context, placing the word together with, ‘judgment, order, conviction or other proceeding’ indicates a final decision; it might also be argued that the context supports a position that decisions of contracting authorities are not covered at all by the rule, which is aimed at proceedings similar to a ‘judgment, order, conviction’. Another question worth considering here is whether the discretion granted to the Court under Order 84, Ryle 21(6) to dismiss an application where the applicant’s delay has caused prejudice, is compatible with the EU law principle of effectiveness. In light of the Uniplex and Commission v Ireland case law, in which the Court of Justice has held that ‘a limitation period, the duration of which is placed at the discretion of the competent court, is not predictable in its effects’,143 arguably it is not.

C. Applications for an Extension of Time

86. Applications to extend time under Order 84A Order 84A, Rule 4 of the Rules of the Superior Courts makes provision for time to be extended in public procurement proceedings. Order 84A, Rule 4(1) provides that proceedings shall be brought within the relevant period set out in Regulation 7 of SI 130/2010 and SI 131/2010 as appropriate. Order 84A, Rules 4(2) and 4(3) then provide as follows (with emphasis added):

‘(2) Notwithstanding sub-rule (1), the Court may grant leave, on the application of the intending applicant for that purpose, to make an application to which Regulation 7(2) of the European Communities (Public Authorities’ Contracts) (Review Procedures) Regulations 2010 or, as the case may be, Regulation 7(2) of the European Communities (Award of Contracts by Utility Undertakings) (Review Procedures) Regulations 2010 applies after the expiry of the time mentioned in sub-rule (1), where the Court considers that there is good reason to do so.

(3) An application under sub-rule (2) shall be by originating motion ex parte grounded upon an affidavit sworn by or on behalf of the intending applicant, but the Court may direct that such an application be made on notice to the contracting authority or any other affected party.

143 Case C-406/08 Uniplex v NHS Business Services Authority, judgment of 28 January 2010, para 42.

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87. ‘Good reason’ for an extension The Court may only grant leave for an application to be brought outside the time limit where there is ‘good reason’ to do so. It will therefore be incumbent on the applicant to demonstrate that a good reason for an extension of time exists. This provision has yet to be the subject of judicial interpretation, although extensions of time have been granted by the High Court under Order 84A in a number of cases. The requirement for a good reason to extend time does however also arise in other areas of the Rules of the Superior Courts, in particular Order 8, Rule 1, which provides for the renewal of a summons on ‘good reason’ and the old Order 84, Rule 20(1), which had provided that leave to apply for judicial review had to be brought within three months of the grounds arising (or six months for certiorari), unless the court considered that there was ‘good reason for extending the period within which the application shall be made’144 (the test in the new Order 84, Rule 21(3) if a ‘good and sufficient’ reason). It is therefore useful to look at how the courts have appraoched the question of extension of time in previous cases. The general principles that have been applied by the courts to the question of whether there was a good reason for an extension of time were recently usefully reviewed by Irvine J in Ernst & Young v Purcell [2011] IEHC 203, who summarised the comments of Fennelly J in Dekra and De Róiste v Minister for Defence145 as follows:

(i) At p 304 of his decision in Dekra he referred to the legislative tendency towards the imposition of stricter time limits and to the fact that this tendency had been met with a corresponding approach from the judiciary…

(ii) The burden of proof generated by Ord 84 remains upon the Applicant at the substantive hearing even if the court grants an extension of time at the ex parte stage and the Applicant cannot establish ‘good reason’ for delay by relying, without more, upon an assertion that the Respondent is not prejudiced by the delay that has occurred (Dekra p 304).

(iii) The onus is on the Applicant to show that there are reasons which both explain and afford a justifiable excuse for the delay, as per the decision of Costello J in O'Donnell v Dun Laoghaire Corporation [1991] ILRM 301.

(iv) A short period of delay may require only slight explanation whereas a longer delay would require a more cogent explanation (De Róiste p 221).

(v) The Applicant must show good reason for all of the period of delay, including that which falls within the time provided for by the relevant rule. …; and

144 This version of Order 84, Rule 21 is no longer in effect following SI No 691 of 2011. As discussed at paragraph 96 below, Order 84, Rule 21 now requires that there be a ‘good and sufficient reason’ for an extension of time. 145 [2001] 1 IR 190.

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(vi) Differing levels of importance may be attached to an explanation in respect of the period of delay falling within the timeframe provided for in the Rules and an explanation furnished in respect of the period outside the permitted time limit. Fennelly J indicated that a greater degree of explanation would be required in respect of the period falling outside the time provided for by the Rule (Dekra p 302).

88. Balancing exercise In deciding whether to extend time, the Courts have seen their role as performing a balancing act to protect fair procedures.146 The absence of prejudice to the respondent or third parties will not, without more, justify an extension of time. The decision to be made by the court, relates ‘only to the reason and explanation for the delay’;147 and ‘cannot, without more, invoke the absence of any prejudice to the opposing party as the sole basis for the suggested good reason’.148

89. Obligations on the applicant The courts have placed a number of obligations on applicants seeking to extend time. First, there is an onus on the applicant to show that there are reasons which both explain the delay and offer a justifiable excuse for it.149 Second, in Veolia, Clarke J was of the view that ‘a party is obliged to act with additional expedition where it obtains late knowledge of the existence of grounds such that it becomes likely that the three month time limit will be exceeded’.150 Third, it has been said that ‘a premium must be placed upon any reasonable method of inquiry which is likely to reveal relevant information in a timely fashion’. 151 In other words, the applicant has an obligation to move quickly in obtaining the information which may indicate that there has been a breach of the procurement rules. So, in Veolia, the aggrieved tenderer’s decision not to accept the offer of a meeting and engage in written communication instead, meant that it had to accept some of the responsibility for the delay. As Clarke J stated, ‘the obligation of transparency on the awarding authority does not absolve a potential applicant from an obligation to make reasonable inquiries if he is not to be fixed with any delay’.152

90. Obligations on the contracting authority At the same time, the courts have held that the respondent contracting authority is also subject to certain obligations and in deciding whether an extension should be granted, the court will consider the conduct of the contracting authority. The focus might fall, in particular, on the way in which the contracting authority has responded to

146 See Dekra [2003] 2 IR 280, 287 (Denham J noting: ‘The necessary balance to protect fair procedures is met in the saver that the court may extend time for such application for good reason’). 147 Dekra [2003] 2 IR 280, 289 (Denham J). 148 Dekra [2003] 2 IR 280, 304 (Fennelly J). 149 Dekra [2003] 2 IR 280, 289 (Denham J). This has frequently been raised as a point in applications to extend time. See also, eg, the comments of Costello J in O’Donnell v Dun Laoghaire Corporation [1991] ILRM 301, 315 (making it clear that the applicant has to show that ‘there are reasons which both explain the delay and afford a justifiable excuse for it’). 150 Veolia [2007] 1 IR 690, 717. 151 Veolia [2007] 1 IR 690, 713. 152 Veolia [2007] 1 IR 690, 705.

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queries raised by the applicant and whether replies have been timely or the contracting authority has simply sought to string the applicant along. Clarke J held in Veolia that there is ‘a clear obligation on the awarding authority to deal with any reasonable queries in a timely fashion’, with the question of timeliness to be judged in the light of the time limit.153 This obligation is perhaps even more pronounced when the 30-day time limit under the Remedies Regulations applies, compared to the situation in Veolia, in which the three-month time limit was applicable.154

91. Principle of effectiveness It was emphasised by Clarke J in Veolia that in deciding whether time should be extended, the EU law principle of effectiveness should be respected:

[A]mongst the matters that must properly be taken into account by the court in considering whether to extend time is to ensure that time will be extended in any case where a refusal to extend time could be said to establish a breach of the principle of effectiveness.155

92. It is worth remembering in this context the Court of Justice has emphasised that national courts ought to apply national procedural rules in a manner that ensures the effective judicial protection of EU law rights. For example, in Unibet, the Court of Justice stated as follows:

[It] is for the national courts to interpret the procedural rules governing actions brought before them … in such a way as to enable those rules, wherever possible, to be implemented in such a manner as to contribute to the attainment of the objective … of ensuring effective judicial protection of an individual’s rights under Community law.156

93. Each ground to be considered separately It is also apparent from Clarke J’s judgment in Veolia that the Court will consider each ground on which the application is based separately and ask whether, in respect of that ground, there is a good reason to extend time. Clarke J refused to extend time in relation to grounds concerned with the failure to evaluate provisional items in the evaluation process;157 extended time in relation to grounds contending that the respondent had inappropriately included the successful tenderer in the evaluation and ranking process when the relevant tender did not contain a price for an upgrade of the processes as required in the tender documents;158 and required further submissions on one of the applicant's grounds, relating to

153 Veolia [2007] 1 IR 690, 710. 154 In Veolia, there was a delay of almost five weeks by the contracting authority in responding to a request for information, which the Court considered was unacceptable, and that the contracting authority had ‘failed to give clear answers to clear questions’ (Veolia [2007] 1 IR 690, 713). 155 [2007] 1 IR 690, 707, para 48. 156 Case C-432/05 Unibet (London) Ltd v Justitiekanslern [2007] ECR I-2271, para 44. 157 [2007] 1 IR 690, 716, para 82. 158 [2007] 1 IR 690, 716-717, paras 85-86.

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the possible upgrading of the successful tenderer’s technology, to decide whether arguable grounds existed in relation to that ground.159

94. Ex parte application Order 84A, Rule 4 provides that the application to extend time ‘shall be’ made ex parte but that the Court may direct that the application be made on notice. This wording suggests that the applicant ought to bring the application ex parte, although were it decided to bring the application on notice to the respondent (and possibly other affected parties), it can be expected that the Court will have no difficulty with this. Indeed, given that the failure to bring proceedings within the relevant time limit is potentially a ‘knock-out’ blow for the respondent, it would not be surprising were a judge to direct, as it is empowered under Article 84A, Rule 4(3), that the application for an extension of time be made on notice to the contracting authority and the winning bidder. Having said this, applications to extend time made ex parte have been granted in a number of recent matters in the High Court. It is also the case that any order made ex parte is provisional in nature and the contracting authority, winning tenderer or any other affected party should have the possibility to apply to the High Court to have any ex parte order extending time set aside.160

95. Procedure for applying for an extension of time The ‘good reason’ for extending time should be explained in the affidavit grounding the application. This affidavit might be sworn by an executive of the applicant who was involved in the procurement process or it could be sworn by the applicant’s solicitor. The application should be made using an ex parte docket, together with the grounding affidavit and any exhibits. It may be prudent to prepare a draft order for the assistance of the Court, in case that the Court indicates that it will grant an order extending time. It is likely that the Court will be more inclined to grant an extension of a fixed duration, say 14 days, than extend time by reference to some occurrence or other.

96. Applications for extension of time under Order 84 Order 84, Rule 21(3) now provides that the test for an extension of time in judicial review proceedings is a ‘good and sufficient’ reason. Order 84, Rule 21(3) provides as follows:

Notwithstanding sub-rule (1), the Court may, on an application for that purpose, extend the period within which an application for leave to apply for judicial review may be made, but the Court shall only extend such period if it is satisfied that:—

(a) there is good and sufficient reason for doing so, and

159 [2007] 1 IR 690, 717, para 87 (Clarke J later granted leave to extend on this ground). 160 See on the general point about the provisional nature of ex parte orders, the judgment of Hogan J in Doyle v Gibney [2011] IEHC 10, para 12.

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(b) the circumstances that resulted in the failure to make the application for leave within the period mentioned in sub-rule (1) either—

(i) were outside the control of, or

(ii) could not reasonably have been anticipated by the applicant for such extension.

97. It is apparent from this that the test for an extension of time under Order 84 is more strict than under Order 84A. Not only must the reason for the extension be ‘good and sufficient’ but the circumstances for the delay must have been outside the control of the applicant or could not reasonably have been anticipated by the applicant. It is not entirely clear what the difference is between a ‘good and sufficient’ reason and a ‘good’ reason but as Biehler has noted, ‘there is no doubt that the addition of a test of ‘sufficient’ is intended to raise the threshold to some degree.’161

161 Biehler, ‘Judicial Review – The Rules of the Superior Courts (Judicial Review 2011) – The Amended Order 84’, Judicial Review Conference, Trinity College, Dublin (11 February 2012), p.6.