Contract award for emergency air ambulance service set aside due to misinterpretation of turnover criterion

The Court of Appeal has set aside a High Court decision that upheld the award of a contract for emergency air ambulance services by a statutory health body to a competing provider. The appellant challenged the award, arguing that the successful tenderer failed to meet a mandatory qualitative criterion requiring a minimum annual turnover of €4,000,000 in specified services over the preceding three years. The key dispute centred on whether the transport of organs without patients—sometimes as unaccompanied cargo—fell within the definition of the 'specific services' required by the tender documentation. The High Court deemed that it did, allowing the award to stand. However, the Court of Appeal disagreed, finding that a reasonably well-informed and normally diligent tenderer would not interpret the tender documents as obliging the provider to perform organ-only transport. Accordingly, the decision was set aside and the matter remitted to the High Court to determine what, if any, relief the appellant is entitled to. Notably, the volume of contradictory affidavit evidence, none tested by cross-examination, did not affect the appellate court's finding, which focused on interpreting the contract terms as understood in the industry.