High Court judge, Mr Justice Colton, has ruled that the Department for Regional Development in Northern Ireland breached public contract regulations in rejecting the tender submitted in 2009 as part of a joint venture between FP McCann Limited and Balfour Beatty (“BBMC”). Recent government information shows that the cost of the project has now reached up to £135 million. This consortium’s tender was part of a public procurement process run by DRD’s Road Service to appoint contractors to design and build the A8 dual carriageway between Belfast and Larne. The contract was to the most economically advantageous tender. The joint venture did not secure the contract because it was asserted by the Department the bid that been submitted was an abnormally low tender and that this carried a risk that BBMC and Roads Service would be unable to agree a target price after the contract had been entered into, and that as result the project would stall. Lagan Ferrovial Costan Consortium was appointed as contractor and they have been carrying out works on the A8 over recent years.
Michael Bowsher QC, acting for the construction company FP McCann Limited, claimed that BBMC had been unlawfully denied the work and should be entitled to damages.
The judge found that there were significant flaws in the process of assessing the plaintiff’s tender. The judge ruled that “there has been a clear breach of duty by the defendant in respect of its consideration of the BBMC bid and specifically a breach of Regulation 30 (of the Public Contracts Regulations 2006).” The judge adjourned the case for further submissions to assess the scale of the compensation with words: “The defendant’s breach of duty should be marked by a meaningful award to reflect the loss of opportunity to the plaintiff to be awarded a significant and potentially lucrative contract.”
See Court’s summary of judgment.