The Court of Appeal (CA) has upheld two separate rulings by the High Court of Northern Ireland setting aside framework agreements following breaches of the public procurement law. Both cases involved an appeal against the High Court’s (HC) decisions to set aside the respective framework agreements. The CA dismissed these appeals and upheld the HC’s decision that the framework agreement was not a “contract” and confirmed that the HC was not consequently limited to ordering a remedy in damages. In reaching this decision, the CA found that setting aside a framework agreement would not involve the same considerations of vested contractual rights and impact on third parties as setting aside a concluded contract. The CA also dismissed appeals against the HC’s substantive finding of infringement in both cases.
The Henry Bros case involved an appeal against the finding that the NI Department of Education had failed to introduce a sufficiently reliable competitive pricing mechanism evaluating bids. The CA declined to set aside the HC’s findings that there was a manifest error in the pricing mechanism used.
The Mclaughlin case involved an appeal against a finding that the Department of Finance and Personnel had failed to adequately disclose relevant award sub-criteria and their weightings. The CA agreed with the trial Judge’s finding that there was sufficient disclosure of sub-criteria to satisfy the requirements of transparency but that the methodology for weighting was insufficiently predictable in the absence of disclosure and that this could have affected the preparation of the tender.