The European Court of Justice recently found that Ireland has failed to fulfil its obligations under EU law in the area of public procurement.
The case concerned the award of a contract to design, build, finance and operate the Dundalk Western Bypass. SIAC Construction Limited, part of the Eurolink consortium (an unsuccessful bidder for the project), complained to the European Commission following the High Court’s dismissal of an action for damages in 2004. The Commission then brought proceedings against Ireland arising from the contract award process.
The Court found that notification to Eurolink that Celtic Roads Group was the preferred tenderer was not a notification of a final decision to award the contract as required under the Remedies Directive. It also found that the Rules of the Superior Courts, which set out conditions and time limits for taking judicial review proceedings in public procurement cases, were not sufficiently clear and precise. The Rules (which refer to taking proceedings “at the earliest opportunity and in any event within three months”) gave rise to uncertainty as to which decisions must be challenged through legal proceedings and as to how periods for bringing an action are to be determined.
This is a significant judgment which exposes the procedural uncertainty faced by parties wishing to challenge public procurement procedures. It is also the second judgment in as many months to find fault with Ireland’s procurement rules: the same Court declared just before Christmas that the rules do not ensure that unsuccessful bidders will be informed of decisions in advance of the expiry of the “standstill” period before a contract may be awarded.
The Government has an opportunity to rectify the position when implementing the new Remedies Directive, which is now long overdue. Contracting authorities and bidders alike will be eager to see how it addresses these issues, and in particular whether the time limits for challenge are relaxed. In the meantime, however, the position of uncertainty remains.
