Challenge to tendering process should have been brought as judicial review

Plaintiffs tendered for the award of a public contract advertised by the defendant for the design, construction, operation and maintenance of a motorway - plaintiffs commenced proceedings by plenary summons on 30th January 2015 claiming damages for breach of contract, negligence and breach of duty, including damages for loss of opportunity and loss of chance, arising from what it pleads was the disclosure of commercially sensitive and confidential information by the defendant in the course of the tender process - claim arises from the happening of a series of events by which it is pleaded the defendant unlawfully disclosed certain confidential and commercially sensitive information - It is accepted some disclosure was made in the course of verbal exchanges between agents of the defendants and the representatives of the two bidders -the plaintiffs say that whilst it is clear that its rival did receive some information pertaining to the status of its bid, that, contrary to assertions contained in correspondence form the defendant it did not obtain any information regarding the competitor’s tender - rival competitor was ultimately awarded the contract - defendant has pleaded that the claim is not properly one that can be maintained by plenary action, as it was not brought by the procedures and within the time limits provided by O.84A of the Rules of the Superior Courts - Public Contracts Regulations set out procedures for the award of works contracts by public authorities in Member States - plaintiffs contend that the claim is one capable of being maintained by common law remedies as an action in contract - central question in regard to how to characterise the claim of the plaintiffs is whether the Invitation to Tender (“ITT”) has contractual force - ITT contains provisions which expressly exclude contractual obligation and the creation of contractual rights or obligations - clause of ITT provides that will treat all commercially sensitive information in the strictest commercial confidence - this clause can be construed as an assumption by the contracting authority of a justiciable obligation to protect, and not unlawfully disclose, commercially sensitive information - Public Contracts Regulations state at 50(3); “A contracting authority shall communicate and store information in connection with awarding public contracts in a way that maintains the integrity of data and the confidentiality of tenders and preserves requests to participate." - plaintiffs were required to pursue the claim in the within proceedings by way of proceedings initiated pursuant to O.84A of the Rules of the Superior Courts.