7 Eur. L. Rep. 1 (2003)

handle is hein.journals/eurlawreo7 and id is 1 raw text is: [2003] EuLR

Supreme Court of Ireland
Keane CJ, Denham, Murray, Hardiman, Fennelly JJ
9 May 2002
[2002] IESC 37
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
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
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.
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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