Tendering process for section of LUAS was conducted lawfully

Judicial review – public procurement - challenge the tendering process for a piece of the Luas track – applicants contend that the tender competition in respect of the contract was vitiated by a number of serious errors and breach of the rules relating to public procurement – applicants came second in the competition - significantly lower price than that of the winning bidder – claims that errors and breach of the rules on the part of the respondent had the effect that they lost the contract –tendering process - applicable legal principles in a procurement law judicial review - applicable legal principles in a procurement law judicial review - principles of equality, non-discrimination and transparency are central to the philosophy of the Directives of encouraging open competition between citizens of, or companies registered in, Member States - Utilities Directive was transposed into Irish law by the Utilities Regulations - the criteria for the award of a contract should be sufficiently clear and apparent to enable tenderers to be compared and assessed objectively - role of the court on review - the contracting authority has no margin of appreciation where the principles of equality/transparency have not been respected - argued that there was a breach of the general principle that impermissible criteria not be applied, or that the disclosed criteria be in fact engaged in the assessment of the tender submissions for the tie in of the Red Line - conditions of tendering - Most Economically Advantageous Tender -Fifty five per cent of the marks were to be awarded to a tender in respect of price, and the balance of 45 per cent in respect of identified qualitative criteria – argued that they received fewer marks than it ought to have scored – argued that the respondent failed to properly apply the tender process in six of the seven sub-criteria - means by which the respondent applied the criteria - main criticism of the tender submission of the applicants was that it portrayed what he perceived as an error or lack of understanding of the technical requirements of the tie-in - whether undisclosed sub-subcriteria were in fact applied – role of the evaluation team - role of an expert evaluator - the reasonably diligent tenderer would have understood that the nature of dismantling and construction work, and the quality of the proposals from an engineering, and indeed geometric point of view, would have a bearing on how the tender would be assessed – negotiated procedure in the assessment of tenders - asserted that the respondent breached the rules of the contract by effectively abandoning the negotiated procedure and that in doing so, it breached the general principles of transparency and equal treatment - in the context of the terminology used in the Conditions of Tendering, the contracting authority had a power to negotiate but was not required to do so - respondent was not under a duty to negotiate with the applicants, and there was no irrationality in its refusal to do so.