This article is an excerpt from the 2021 edition of The Art of Tendering: A Global Due Diligence Guide, which is available for purchase.
In its March 2002 decision in Whelan Group (Ennis) Ltd. v. Clare County Council, the High Court of Ireland upheld the minimum prior experience requirements established by the government during a prequalification process. The dispute dealt with a pre-screening of contractors for a subsequent invitational tendering process for the award of contracts for the provision of major road improvement works for the Newmarket-on-Fergus area in County Clare, Ireland. The planned works included the construction of nine kilometres of dual carriageway, three kilometres of single carriageway, five bridges, and three underpasses. The value of the works was estimated at £25 million with the projected timeframes estimated as requiring 28 months for completion. The complainant took issue with the minimum prior experience requirements, which required evidence of successful completion of at least one road works project exceeding £10,000,000 over the prior four-year period:
The minimum relevant experience shall be judged on the Contractor’s record during the period 1995 to 1999 inclusive. Evidence of that record shall be furnished, with the attached pre-qualification questionnaire. The Contractor shall, as a minimum, have satisfactorily completed:
Roadworks project, value exceeding IR£10,000,000, excl. VAT for any one individual project.
The complainant challenged this requirement as being unnecessarily restrictive and contrary to the public procurement rules. However, the Court disagreed, finding that the requirement was rational and defensible since it: (i) was established based on advice of an expert committee; (ii) was proportionate to the scale of the proposed work; (iii) was intended to minimize construction delays by ensuring that bidders had a proven track record of having completed similar work; and (iv) was transparently disclosed so that all bidders had equal notice of the standard they needed to comply with:
In my view the applicant is not entitled to the reliefs which it seeks. The selection of the pre-qualification criterion which is sought to be impugned in these proceedings was made on the advice of an expert standing committee. It took the view that this criterion was necessary having regard to the financial scale and technical complexity of the project. It was taken in accordance with the practice determined by the National Roads Authority which took into account its experience nationally in relation to the use of the restricted tendering procedure. The stipulation was included in order to ensure the technical capability of tenderers. The stipulation sought to minimise the risk of delays to the project and the implications that would arise from that for public funds. This criterion applied to all potential contractors and I cannot see how it can therefore be said to be discriminatory. It is an objective criterion. It is capable of objective assessment and application. There is a rational basis for it. It is transparent because every potential tenderer who was notified of the requirement had to comply with it. It manifestly relates to economic and technical conditions.
The Court therefore rejected the legal challenge. As this case illustrates, purchasing institutions may be called on to defend the reasonableness of their evaluation criteria against allegations that those criteria are unnecessarily restrictive to competition. Project teams should therefore be prepared to defend the evaluation criteria by ensuring that those criteria are rationally connected to the contract requirements and proportionate to those requirements.
