Builder loses challenge over council's housing works tender process

The value of the work at issue is around €2.5m per year. Stock Picture: iStock

A builder has lost his legal challenge concerning a panel system adopted by Kildare County Council for choosing builders to do repair and renovation works on the council’s housing units.

Robert Owens, Kilberry, Athy, Co Kildare, brought High Court judicial review proceedings over the council's decision to eliminate him from a tendering process for the panel system.

The value of the work at issue is around €2.5m per year.

The "Multi-Party Agreement for Planning Building Works 2018", relating to the council’s 4,216 housing units, involved the appointment of 12 contractors to carry out minor works. It also involved the appointment of two preferred contractors, one for Kildare North and one for Kildare South, plus a panel of eight reserved bidders to back up the preferred contractors, to carry out “quick turnaround works”.

The agreement was planned to last 12 months, with an option for the council to extend it for up to three additional 12 month periods.

The council previously told the court the more urgent works involve adapting dwellings for disabled occupants and refurbishing vacant units and houses bought by the council.

In 2017, there were 123 houses refurbished after being vacated while the same number were renovated after purchase, the council said.

Mr Owens said he is a sole trader who has had a long-standing and successful contracting relationship with the council.

He argued his elimination from the panel was flawed on grounds including that his competitors were allegedly afforded an unfair advantage in the tendering process for the panel because the council gave them specific guidance while he was excluded. The council’s elimination decision breached EU Remedies Regulations, it was submitted.

The case was initiated earlier this year and the council had secured a fast-track hearing in the Commercial Court, the High Court’s big business division because the challenge meant an automatic suspension of the awarding of contracts until the case was decided.

The council said it currently has 80 projects involving adaptation of dwellings to facilitate disabled tenants of which 27 are classified as urgent.

In his 68-page reserved judgment on Friday, Mr Justice Michael Quinn dismissed the challenge.

He said Mr Owens had declined to provide certain materials requested in November 2018 by the Tender Assessment Panel (TAP), including a quality submission and a revised pricing document concerning the quick turnaround works aspect of the tender.

The TAP’s decision the following month to eliminate Mr Owens from further participation in the competition was within the discretion to exclude him conferred by the Instructions to Tenderers (ITT), he said.

The council was presented with a refusal by Mr Owens to address identified deficiencies in his tender and the elimination decision of December 14th 2018 contained no manifest error, he ruled.

The council’s engagement with other tenderers was not discriminatory or unfair to Mr Owens, he said. The absence of a Quality Statement from Mr Owens, coupled with 439 items deemed by the TAP to have been priced abnormally high or low, distinguished Mr Owens “so radically” that the disputed engagement with the other tenderers from November 27th 2018 onwards did not constitute unequal treatment or unfair discrimination against Mr Owens, he held.

The judge rejected other arguments, including that Mr Owens was prejudiced by the council’s failure to review the elimination decision.

Final orders will be made on a later date after the sides have considered the judgment, which was delivered electronically.