Court rules on challenge to M50 toll tender
By Rhoda Jennings
13 November, 2018
The Commercial Court has dismissed the challenge taken by Transcore LP against Transport Infrastructure Ireland’s decision to award the tolling operations contract for the M50 Motorway to Turas (a consortium consisting of a number of entities including French engineering giant, Vinci and customer service group Abtran).
Transcore (a US company which maintains a large proportion of highway toll lanes in the US) challenged the TII’s interpretation and application of a quality scoring matrix in the evaluation of the successful tender. It claimed that TII misapplied or misinterpreted the scoring matrix. TII alleged that the misapplication or misinterpretation of the matrix resulted in a breach of the general principles of procurement, in particular the principles of transparency and equal treatment. The interpretation of the quality scoring matrix was pivotal in deciding the outcome of the tender as the difference of one mark could have resulted in Transcore winning the competition.
Ultimately the Court ruled that there was no breach of the principles of procurement and that the interpretation of the tender documentation by TII was correct.
The case refers to and endorses some key areas of procurement.
Maintenance of records
The importance of maintaining records from the evaluation process was highlighted. The Court noted that it is critically important for proper documentary records to be kept. TII maintained extensive records throughout the tender process. The documents demonstrated how the evaluation committee came to their conclusions and supported their final award decision.
Discretion of Contracting Authority
A Contracting Authority has discretion when applying evaluation criteria. The Court ruled that the TII had a margin of appreciation or discretion when it came to deciding the score of Turas.
Evolution of marks
The marks awarded to the successful tenderer changed over the course of the evaluation committee deliberations, however it was clear from the evaluation documents how and why these views changed and evolved.
The Court noted that it should be reluctant to engage in a detailed analysis of how marks changed and endorsed the view of Hogan J in the Court of Appeal in Word Perfect No.3:
“evaluators should have the freedom to explore, consider and reflect on the strength and weakness of the various tenders… If they are required to explain possible changes in thinking between evaluation meetings prior to the final decision it would add new layers of complexity…
The evaluators must be prepared to stand or fall by a review of the final published evaluation for manifest error. But short of that they cannot be expected to have to defend what are, at best, tentative or professional views expressed during the course of the evaluation process…”
Interpretation of tender documents
Tender documents are to be interpreted from the point of view of a reasonably well informed tenderer and not dissected from a legal perspective. Endorsing the ruling in Gaswise the Court noted that the interpretation of the tender documents, in particular the scoring matrix, is a matter for the Court and the documents must be interpreted in a manner which gives effect to the general principles of equal treatment and transparency. In addition, the interpretation must focus on the “industry” concerned in which the professionals and persons involved are not lawyers but participants in that industry.
The importance of transparency was highlighted. TII carried out the tender process in a solemn and transparent manner and provided a detailed standstill letter to Transcore. The Court commended this transparency.
The M50 procurement process is not yet over. The incumbent, Emovis Operations Ireland Limited, which was also unsuccessful in the tender process has also commenced proceedings against the award decision. Meanwhile, the award of the contract to Turas remains suspended and the existing contract with Emovis has been extended until March 2019.