Firm given special treatment over roadworks bids

A Stormont department took part in a “clandestine” process with a firm bidding for deals to resurface NI’s roads, a court has ruled.

A judge said the Department for Infrastructure’s conduct “entailed an egregious breach of the principle of transparency”.

He added that the firm had been “accorded special treatment” by the department.

The proceedings centred on eight contracts awarded in 2015

The contracts, for work on roads across Northern Ireland, had a total estimated annual value of up to £52m.

The Court of Appeal dismissed an appeal by the Department for Infrastructure.

In a statement to the BBC, the Department for Infrastructure said: “The department notes the judgment from the Court of Appeal and we are considering it with our legal advisors.”

Senior judges upheld findings that the tendering competition breached the principle of transparency and resulted in a manifest error.

The procurement exercise sought the most economically advantageous tender for each contract, based on a criteria where price was weighted at 70% and quality 30%.

John McQuillan (Contracts) Ltd bid for seven contacts came out on top in six of them.

However, the court heard the company duplicated personnel and plant for each competition – but could only provide site engineers for four contracts at most.

A meeting involving civil servants from the Department for Regional Development (DRD) – one of the Department for Infrastructure’s predecessors – was held in September 2015, but no minutes were provided.

Following subsequent discussions with the department, the firm withdrew two of its six successful tenders.

A decision was then taken to offer it contracts for the other four resurfacing projects.

‘Defies common sense’

Lord Justice McCloskey said that giving top ranking to an operator for more contracts than it had the resources to carry out “defies common sense and commercial reality”.

In July 2020 a High Court judge held that the DRD had wrongly given a mark of excellence in tenders where there were not the necessary resources.

He also identified a lack of transparency, unequal treatment and breach of the principle of non-discrimination in the circumstances whereby that company was able to select contracts.

Rejecting the department’s appeal against those findings, Lord Justice McCloskey concluded that the post-tender evaluation and scoring interaction with the operator ranked first for six contract bids, along with resulting award decisions, breached competition and EU legal rules.

“The department engaged in a secret, bilateral and unrecorded process with one of multiple bidders,” he said

“In short, (the successful firm was) accorded special treatment in a clandestine and purely bilateral process and, in consequence, the level playing field was distorted for other bidders.”

Civil engineering company Northstone (NI) Ltd is suing over the handling of the tendering competition.

Northstone was ranked first in one of the eight contracts it tendered for, coming second or third in all the rest.

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