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7 Eur. L. Rep. 1 (2003)

handle is hein.journals/eurlawreo7 and id is 1 raw text is: [2003] EuLR A SIAC CONSTRUCTION LTD v MAYO COUNTY COUNCIL Supreme Court of Ireland Keane CJ, Denham, Murray, Hardiman, Fennelly JJ 9 May 2002 [2002] IESC 37 B Public procurement - Public works contract - Whether second lowest tender most economically advantageous tender - Equal treatment of tenderers - Criteria for award - Judicial review - Whether clear error in exercise of awarding authority's discretion established - EC Treaty, Art. 234 - Council Directive 71/305/EEC - Council Directive 89/665/EEC C Facts In 1992 Mayo County Council, the respondent, advertised for tender a major sewage works at Ballinrobe, Ireland. The award was to go to the most economically advantageous tender. D The price submitted by SIAC Construction Ltd, the appellant, was the lowest after mathematical adjustment, but the consulting engineer engaged by the respondent found that a competing tender might ultimately prove to be the lowest. The appellant claimed in High Court proceedings that the respondent, by relying on this conclusion, breached the EU public procurement rules, submitting that it was not possible to take into account the likely ultimate out-turn of the cost of the contract. This argument failed in the High Court. On appeal to the Supreme Court, the question whether the ultimate cost to the respondent was an admissible criterion was referred to the European Court of Justice (ECJ), which ruled that, provided it formed part of the tender criteria, it was. On the resumption of the appeal, the appellant argued that the possibility of award- ing the contract on this basis was not part of the criteria notified in the tender docu- ments. The respondent contended that it was implicit in the reference to the ECJ that F the criteria covered this possibility, and furthermore objected to this new argument put forward by the appellant on the basis that it had not been advanced in the High Court. It fell to the Supreme Court to assess, in accordance with national law, the scope of the award criteria, and specifically whether they should be interpreted as notifying tenderers that the respondent would decide on the basis of the ultimate out-turn cost. G Held, dismissing the appeal 1. The issue as to whether the ultimate cost to the respondent was an admissible criterion for awarding the contract was implicit in the questions referred to the ECJ; the appellant had not raised this argument at any earlier stage of the H proceedings, and as such it was to be dismissed. See post p. 13F-G. 2. The main aim of regulating the award of public procurement contracts in general was to ensure that public funds were spent honestly and efficiently. See post p. 17C-D. ( 2003 Hart Publishing Ltd. CCC 1091-3297/03/010001-24

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