McLaughlin & Harvey Ltd v Department of Finance & Personnel [2011] NICA 60 (26 September 2011)

McLaughlin & Harvey Ltd v Department of Finance & Personnel [2011] NICA 60 (26 September 2011)

The 39 topics in the evaluation document were sub-criteria, not main criteria, and were sufficiently predictable and disclosed to satisfy transparency requirements. There was no evidence that the undisclosed weightings altered the criteria or caused discrimination. However, the trial judge's finding that the absence of disclosure could have affected the preparation of the respondent's tender was supported by some evidence, and there was insufficient basis to overturn that finding. The judge was not barred from setting aside the Framework Agreement as a remedy.

Citation
[2011] NICA 60
Parties
Plaintiff/respondent: McLaughlin and Harvey Limited; Defendant/appellant: Department of Finance and Personnel
Jurisdiction
Northern Ireland
Judgment Date
26 September 2011
Procedural Posture
Appeal / Court of Appeal Judgment
Outcome
Appeal dismissed
Legal Topics
Transparency in Tendering, Award Criteria Disclosure, Framework Agreements, Remedies for Breach of Procurement Rules
Public Procurement Administrative Law European Union Law Transparency in Tendering Award Criteria Disclosure Framework Agreements Remedies for Breach of Procurement Rules

Case Brief

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Parties

McLaughlin and Harvey Limited

Plaintiff/respondent

Department of Finance and Personnel

Defendant/appellant

Procedural Posture

Appeal / Court of Appeal Judgment

Legal Issues

  1. 1 Whether the contracting authority breached the duty of transparency by failing to disclose sub-criteria and their weightings in the tender process
  2. 2 Whether the application of undisclosed sub-criteria and weightings could have affected the preparation of tenders
  3. 3 Whether the trial judge was correct to set aside the Framework Agreement as a remedy

Ratio Decidendi

The 39 topics in the evaluation document were sub-criteria, not main criteria, and were sufficiently predictable and disclosed to satisfy transparency requirements. There was no evidence that the undisclosed weightings altered the criteria or caused discrimination. However, the trial judge's finding that the absence of disclosure could have affected the preparation of the respondent's tender was supported by some evidence, and there was insufficient basis to overturn that finding. The judge was not barred from setting aside the Framework Agreement as a remedy.

Court Disposition

Appeal dismissed

Orders

  • The appeal is dismissed.
  • The order setting aside the Framework Agreement stands.