Monday 21 October 2019

Two companies sue NRA as €300m road project contract is awarded to rivals

(stock photo)
(stock photo)

Tim Healy

A joint venture between two companies which tendered for a €300m road project has sued the National Roads Authority (NRA) over the procedure leading to the contract being awarded to a rival consortium.

The contract, for the N17/N18 Gort to Tuam Road project in Galway, was awarded in April 2014.

The unsuccessful joint venture says it believes commercially sensitive information related to its first tender, submitted in 2010, was disclosed by the NRA to the rival which gave it an unfair advantage.

The case has been brought by BAM PPP Ireland Ltd and Balfour Beatty Ireland Ltd, with registered offices respectively at Kill, Co Kildare, and Northern Cross, Malahide Road, Dublin.

The joint venture is suing the NRA for damages over alleged negligence, breach of contract; breach of duty, including statutory duty; breach of legitimate expectation; and loss of opportunity.

Mr Justice Brian McGovern has refused to fast-track the action in the Commercial Court on grounds of delay in bringing it. That means the case will proceed via the ordinary High Court procedures.

The joint venture  argued the delay in bringing the action arose in circumstances where they were in correspondence with the NRA about the matter for some time.

Acting as a joint venture, the two companies tendered in 2010 for construction and development of the Gort to Tuam Public Private Partnership road scheme and claim they were deemed the preferred tenderer over a tender of the DirectRoute consortium.

Only the plaintiffs and DirectRoute were invited to make written tenders on foot of the Invitation to Tender issued in 2009, it is claimed.

Due to circumstances outside their control, the plaintiffs allege neither they nor DirectRoute were in a position to enter into a contract with the NRA on the terms identified in the Invitation to Tender and the contract was not awarded.

It is claimed the NRA in April 2011 invited both tenderers to take part in a further procedure on foot of an Invitation to Negotiate (under the 2006 EC Regulations for award of public authorities' contracts) - and they did so.

Under the invitation, the NRA was obliged not to disclose to DirectRoute commercially sensitive details concerning the plaintiffs' 2010 tender, it is alleged.

The plaintiffs however believed the NRA, prior to issuing the invitation, had disclosed to DirectRoute sensitive information concerning the plaintiffs' 2010 tender.

They claim the NRA, in a letter of April 2011, informed the plaintiffs they and DirectRoute may have received some indication as to the relative overall standing of the tenders submitted.

In those circumstances, the letter stated the NRA had decided to confirm certain information to both tenderers and went on state the difference between the two tenders was "less than €10m", it is alleged.

The plaintiffs' case is that the alleged provision of this information gave DirectRoute an unfair advantage in the subsequent tender competition which was won by DirectRoute after it delivered a lower tender than that of the plaintiffs.

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