In August 2016, the High Court gave judgment in the case of Forum Connemara Limited (“Forum”) v Galway County Local Community Development Committee (“GCLCDC”) [2016] IEHC 493. The case concerned the duty on statutory bodies and contracting authorities to give reasons.

Facts

GCLCDC is charged with the delivery of a programme known as the Social Inclusion and Community Activation Programme (“SICAP”). SICAP had previously been delivered by two providers but, at a meeting on 30 September 2014, GCLCDC made the decision that there should only be one service provider for SICAP for the entire County of Galway. A two-stage procurement process was entered into and, following stage one, Forum and four other providers were invited to participate in stage two. GCLCDC subsequently awarded the contract to Galway Rural Development Company Limited and Forum was advised that it had been unsuccessful.

Forum’s Submissions

A preliminary issue relating to time limits was previously heard before the Court of Appeal. The Court of Appeal had reminded applicants of the need to act expeditiously in challenging procurement procedures. In the present case the following issues were addressed:

  • whether GCLCDC gave adequate and intelligible reasons for its decision dated 2 March 2015 not to award the SICAP contract to Forum; and
  • whether the decision was proportionate, rational and in accordance with fair procedures as set out in the various EU Public Procurement Directives.

Decision

Hedigan J reiterated that the role of judicial review is limited to determining whether a decision of an administrative act is lawful or unlawful not to act as a Court of appeal from the original decision per se. The Court said that the acts are presumed lawful unless the contrary is shown and that where there is “any reasonable basis” upon which a contracting authority can award a public contract the Court has no jurisdiction to interfere. The Court considered that:

  • as the contract in question was an “Annex II B” contract, many of the EU obligations to give reasons for a decision were not applicable. It was accepted however that there is a general legal requirement on public bodies to give reasons for the decisions taken in relation to the award of public contracts. The Court found that GCLCDC gave a detailed and comparative analysis to Forum on the reasons for its decisions in respect of 12 scoring areas. In this respect it was found that this analysis “went beyond any general requirement to give reasons.”
  • The Court did not accept there was any breach of the principle of proportionality and that no real case as to irrationality was made out in the case.

The reliefs sought were refused.

Comment

The case serves as a reminder to public authorities of their general requirement to give reasons for their decisions even in cases where all of the relevant public procurement rules do not apply. It also states that public bodies are required to have “some material” to support its decision. This supports the recent, general trend in procurement cases emphasising the importance of public bodies keeping records of their decision making processes.

The finding that so long as there is “any reasonable basis” upon which to make the relevant decision, a Court cannot interfere, may be seen as setting a rather high burden of proof on applicants who are legitimately querying the decision making processes of public bodies. While perhaps no discussion is required, there is no discussion in the judgment in relation to the extent of the interplay (if any) between manifest error (being simply a clear error) and a public body having a reasonable basis for its decision (which in theory could be reasonable but clearly wrong) that may need to be the subject of further review.