Northern Irish Waste Services Ltd v Northern Ireland Water Ltd & Ors (2013) NIQB 41

September 13, 2013

In the recent case of Northern Irish Waste Services Ltd v Northern Ireland Water Ltd & Ors, the High Court in Northern Ireland heard a claim by Northern Irish Waste Services Limited, an unsuccessful tenderer for the award of a contract for sludge management services conducted by Northern Ireland Water, a utility for the purposes of the Utilities Contracts Regulations 2006. Northern Irish Waste Services argued that Northern Ireland Water had failed to conduct the tender process in accordance with the established principles of fairness, non-discrimination and transparency and in breach of the Utilities Contracts Regulations 2006. These regulations govern the procedures for the award of works, services and supplies for specific utility companies and are applicable in England, Wales and Northern Ireland. The Court disagreed with the claimant’s grounds for challenge and held that:

(1) The criteria for the award were identified with sufficient clarity and it was clear that questions posed of the bidders would be used in the evaluation. The issue of sub criteria were commented on in the judgment where should the contracting authority wish to rely on sub criteria in evaluating the tender the potential tenders should be informed of the weighting attached to these in the contract documents. In this instance the criteria were sufficiently disclosed by the nature of the questions in the invitation to negotiate.

(2) There had been no incorrect use of the criterion in relation to experience and resources including where criteria were allegedly linked to ability to perform rather than the most economically advantageous tender. The Court concluded that the Lianakis¹ case, which held that the drafting of the Directive 92/50 required a clear distinction to be maintained between

(1) criteria which are aimed at identifying the tender that is the most economically advantageous and, (2) those criteria “instead essentially linked to the evaluation of the tenderer’s ability to perform the contract in question”, were not applicable to utilities procurement. Indeed, the judge’s comments followed the line of earlier critics of Lianakis, namely, that surely one of the best ways to evaluate the likely quality of the bidder’s performance, if awarded the contract, is to look at the quality of its past performance of other contracts.
(3) There was no substance in the complaint that relevant weightings were not stated. The invitation to negotiate was clear.

(4) The fact that a bidder was eliminated at the quality stage did not mean that its bid had not been assessed fairly relative to the others. All bids were subjected to the same assessment of a two-stage process where quality and then price were evaluated. Directive 2004/17 did not indicate that quality and price had to be considered at the same time, but rather as part of the same determination. Nor was there anything in the Regulations which forbade the setting of minimum standards in relation to quality which had to be attained prior to evaluating the price of the bid.

In conclusion, the Court deemed that Northern Ireland Water had acted appropriately and for the reasons outlined above Mr Justice Treacy dismissed the appeal of Northern Ireland Waste Services in its entirety.

Cleaver Fulton Rankin Solicitors have a renowned Commercial Litigation Department including a dedicated Procurement Team who provided legal representation in this case.

Please note: The content of this article is for information purposes only and further advice should be sought from a professional advisor before any action is taken.

¹Emm G Lianakis AE v Alexandroupolis (C-532/06) [2009] All E.R. (EC) 991