Ireland: Tick-Tock: Baker J. Provides Fresh Analysis On Time Limits For Procurement Challenges

Last Updated: 17 August 2018
Article by Aaron Boyle and Eva E Barrett
Most Read Contributor in Ireland, October 2018

On 21 June 2018, Baker J. analysed the nature of the time limits applicable to the judicial review of public contracts in Newbridge Tyre & Battery Company Ltd. v. Garda Commissioner [2017] 964 JR. This is an important case which provides fresh analysis on the critical issue of time AARON BOYLE limits for public procurement challenges.


To understand this case it is necessary to set out the timelines in a bit of detail. On 22 June 2017 An Garda Síochána commenced a competition to procure garage services for vehicles kept by An Garda Síochána which were either damaged as a result of traffic collisions or seized and stored for further criminal investigation. Tenderers were informed of the outcome of the competition by letter dated 27 October 2017. Corcoran Autobody Works Limited ("Corcoran") was identified as the preferred bidder. On the same date, Corcoran's competitor, Newbridge Tyre and Battery Co Limited ("Newbridge"), wrote to An Garda Síochána complaining that Corcoran had not met the competition's planning permission and did not have the necessary waste permits to provide the services and requested detailed information from An Garda Síochána.

An Garda Síochána provided a substantive response by letter dated 8 November 2017; and then again on 14 November 2017. Newbridge raised further queries by letter of 16 November 2017 and a response issued on 23 November 2017. In its response on 23 November 2017 An Garda Síochána acknowledged that Corcoran did not have the storage capabilities to fulfil the contract at either its primary or secondary facilities which was a tender requirement. Newbridge wrote again on 24 November 2017 with further complaints to which An Garda Síochána responded on 6 December 2017.

On 8 December 2017 (approximately 42 days after the notification of the outcome of the competition) Newbridge applied to bring judicial review proceedings on the grounds that sections 4.1 and 4.2 of the Request for Tender had not been met. These clauses expressly stated that having sufficient planning permission to enable performance of the contract was a "condition precedent to the award of the tender". As a preliminary matter, the High Court was first asked to determine whether these proceedings were time barred by regulation 7(2) of the Remedies Regulations (the European Communities (Public Authorities Contracts) Review Procedures Regulations 2010, S.I. 130 of 2010, as amended).


Regulation 7 of the Remedies Regulations affords a thirty day time limit within which applicants can appeal the award of public contracts. It provides the following two options for when time begins to run: (1) after the applicant was notified of the decision, or (2) when it knew or ought to have known of the infringement alleged in the application.

This is further softened by Regulation 10(2), which allows the court to extend the time within which an applicant is permitted to bring proceedings if there is "good reason to do so".

On 21 June 2018 Baker J. gave a detailed analysis of the thirty day time limit for commencement of public contract judicial review proceedings along with a consideration of the criteria necessary for the court to find a "good reason" to extend the time within which to bring proceedings.


Baker J. began her analysis by recognising the necessity for a comparatively strict approach to public procurement time limits. In so doing she referred to both Dekra Eireann Teoranta v The Minister for the Environment [2003] 2IR 270, 304; and Forum Connemara Ltd v Galway County Local Community Development Committee [2016] IECA 59. In Dekra and Forum the applicant sought to extend the time within which to bring proceedings under O. 84A RSC. In identifying the test to be applied in such circumstances, Baker J. stated:

"the test is to be objectively assessed, the burden to explain and justify is on the person who has delayed, and the reason must be sufficient, justifiable on the facts of the case, and the test is not readily satisfied by general assertions"

Review of point at which the applicant for judicial review "knew or ought to have known" that the competing tenderer had not met the competition requirements.

Baker J. distinguished the facts presented in Dekra and Forum from those before her. In the case at hand, the successful tenderer had not met the competition requirements and so the test was to ascertain "the point at which the applicant might have taken a reasonable view that the preferred bidder had not met the qualifying criteria". (para. 38). Baker J. stressed that it was not necessary for the applicant to know all the facts; what was necessary was for the applicant to have reasonable grounds for challenging the improper award of the contract. The key question was when the relevant requested information was disclosed.

In assessing the facts at hand, Baker J. determined that the factors giving rise to the challenge were not ascertainable until 23 November 2017 (para. 62), when An Garda Síochána confirmed that there were issues around site capacity for Corcoran. By this time Newbridge had received two letters of clarification, and had sufficient information to be in a position to reasonably assess whether it was appropriate to bring proceedings (para. 58). In coming to this conclusion, the judge rejected the argument that Newbridge had delayed issuing proceedings in an attempt to ascertain the strength of the case before bringing an application for judicial review, in other words Judge Baker said Newbridge was not trying to "have [his] cake and eat it".


Newbridge raised issues with Corcoran's compliance with planning permission requirements in its first engagement with An Garda Síochána on 27 October 2017 (which was the date it received notification of the appointment of Corcoran as preferred bidder). However, the court found that Newbridge was not on notice of the infringement alleged in the application (as required under Regulation 7) until a much later point in time when more detail of the tender requirement Corcoran had failed were reasonably known to Newbridge. This case suggests a more detailed and qualitative assessment of pre-litigation correspondence is required to determine when time will begin to run against a particular applicant. It is also interesting to note the emphasis placed by the Court on the state of knowledge of Newbridge in determining when time began to run against it.

Legal certainty in relation to the time limits for challenges to the award of public contracts is an important objective from the perspective of both awarding authorities and bidders alike. We will have to wait and see what impact this case has on the achievement of that objective.

This article contains a general summary of developments and is not a complete or definitive statement of the law. Specific legal advice should be obtained where appropriate.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions