Copymoore Limited and other applicants issued proceedings contending that the qualification criteria set out in a request for tender for a multi-supplier framework agreement for the supply of printers and printing devices were disproportionate to the relevant market and discriminatory in a manner prohibited by the European Communities (Public Authorities' Contracts) (Review Procedures) Regulations 2010 ("the Remedies Regulations"). The originating Notice of Motion and Statement of Grounds were dated 19 March 2013. The matter was returned before the High Court on 22 April 2013 and was subsequently adjourned on a number of occasions. The respondents' Statement of Opposition and replying Affidavits were dated 15 August 2013.
In November 2013 the Applicant's solicitors wrote to the respondents seeking consent to amendment of the Statement of Grounds to add an additional ground on which the applicants sought to challenge, namely, the capacity of the Commissioners to enter into and/or conclude proposed framework agreements on behalf of public sector clients named in the tender documents. It was explained that the matter had already been argued before the High Court in separate proceedings between the two parties but that, owing to an oversight, relief had not been sought on that ground in the current proceedings. (The earlier proceedings had resulted in a judgment of the High Court (Hogan J) on 29 May 2013 declaring that a Circular by the Department of Public Enterprise and Reform was ultra vires in so far as it sought to compel relevant public bodies to use framework arrangements which had been advertised as voluntary [ IEHC 230].
The Remedies Regulations, Regulation 7, require that application to the Court be made within a relevant period (usually 30 calendar days) or in some instances 6 months. These periods are mirrored in Order 84A of the Rules of the Superior Courts governing applications for Judicial Review of decisions in a procurement context. Order 84A, Rule 8, further provides that the High Court may allow an applicant or other party to amend a Statement of Grounds by specifying different or additional grounds of relief or opposition or otherwise on such terms as the High Court thinks fit. Rule 4(2) empowers the Court to grant leave to make an application to which Regulation 7(2) of the Remedies Regulations applies after the expiry of the time mentioned "where the Court considers that there is good reason to do so".
In the present instance, the application was brought well after the prescribed time limit had expired. The ground sought to be added, namely, the capacity ground was not included in the original statement of grounds owing to an oversight. This was not noticed until October 2013, after the respondents' Statement of Opposition and replying Affidavits were filed.
O'Neill J, citing the decision of the Supreme Court in Dekra Eireann Teoranta v Minister for the Environment  2 IR 270, to the effect that in the specialised area of Judicial Review in the Procurement Procurement context, a strict or stringent approach must be adopted to applications for relief outside the prescribed time limits. The Court also derived support from the decisions of Finlay Geoghegan J in Muresan v Minister for Justice, Equality and Law Reform  2 IRLM 364 and of Peart J in Baxter Healthcare Limited v HSE and Beacon Medical Group  IEHC 413 (the latter to the effect that time begins to run as soon as an applicant has sufficient facts at its disposal to commence a challenge). In the present case, the applicants had in fact given written notice to the respondents prior to the issue of the proceedings of their intention to claim on the capacity ground.
The Court held that in a procurement case the stricter approach to compliance with prescribed time limits required excluded mere oversight as a good and sufficient reason for permitting an extension of time to amend. O'Neill J considered that in order to reach the necessarily high threshold which a "good and sufficient reason" required in those cases (in which EU law required, as was pointed out in Dekra, that application for remedies be made at the earliest opportunity). He held that it must be shown that the factor which brings about the application to extend time or seek relief outside the time limit was either not existing within the time limit or was unknown to the applicant within that time limit. In effect, the applicant had to demonstrate that insofar as the ground sought to be added was concerned the applicant was effectively inhibited or prevented from raising that ground within the prescribed time limit.
The application to extend time was refused.
This judgment is illustrative of the strict approach to time limits springing from the EU Procurement Law requirement that remedies be sought as a matter of urgency and that relief be rapid and effective.
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.