S.I. No. 374/1998 - Rules of the Superior Courts (No. 4), (Review of the Award of Public Contracts), 1998

S.I. No. 374 of 1998.

RULES OF THE SUPERIOR COURTS (NO. 4), (REVIEW OF THE AWARD OF PUBLIC CONTRACTS), 1998

We, the Superior Courts Rules Committee, constituted pursuant to the provisions of the Courts of Justice Act, 1936 , section 67, and reconstituted pursuant to the provisions of the Courts of Justice Act, 1953 , section 15, by virtue of the powers conferred upon us by the Courts of Justice Act, 1924 , section 36, and the Courts of Justice Act, 1936 , section 68 (as applied by the Courts (Supplemental Provisions) Act, 1961 , section 48), and the Courts (Supplemental Provisions) Act, 1961 , section 14, and of all other powers enabling us in this behalf, do hereby make the annexed Rules of Court.

Dated this 23rd day of July, 1998.

Frederick Morris

Ronan Keane

Kevin Lynch

Richard Johnson

Gordon Holmes

Eamon Marray

I concur in the making of the annexed Rules of Court.

Dated this 6th day of October, 1998.

John O'Donoghue

Aire Dlí agus Cirt

Comhionannais agus Atchóirithe Dlí

S.I. No. 374 of 1998.

RULES OF THE SUPERIOR COURTS (NO. 4),

(REVIEW OF THE AWARD OF PUBLIC CONTRACTS), 1998

1. The following Order shall be inserted as Order 84A of the Rules of the Superior Courts :

"ORDER 84A

Review of the Award of Public Contracts

1. (1) In this order unless the context or subject matter otherwise requires —

"The Directives" means and includes all or any of the following:

(a) the Public Services Contracts Directive,

(b) the Public Supply Contracts Directive,

(c) the Public Utility Contracts Directive,

(d) the Public Works Contracts Directive,

(e) the Review Procedures Directives.

(2) "The Public Services Contracts Directive" means Directive 92/50/EEC (O.J. L209 24/7/92 p.1).

"The Public Supply Contracts Directive" means Directive 93/36/EEC (O.J. L199 9/8/93 p.1).

"The Public Utilities Contracts Directive" means Directive 93/38/EEC (O.J. L199 9/8/93 p.84).

"The Public Works Contracts Directive" means Directive 93/37/EEC (O.J. L199 9/8/93 p.54).

"The Review Procedures Directives" means Directive 89/665/EEC (O.J. L395 30/12/89 p.33 and Directive 92/13/EEC (O.J. L76 23/3/92 p.14).

(3) "The Regulations" means and includes all or any of the following:

(a) European Communities (Award of Public Works Contracts) Regulations, 1992 (S.I. 36 of 1992).

(b) European Communities (Award of Public Supply Contracts) Regulations, 1992 (S.I. 37 of 1992).

(c) European Communities (Review Procedures for the Award of Contracts by Entities operating in the Water, Energy, Transport and Telecommunications Sectors) Regulations, 1993 (S.I. 104 of 1993).

(d) European Communities (Award of Public Services Contracts) Regulations, 1993 (S.I. 173 of 1993).

(e) European Communities (Award of Public Supply Contracts) (Amendment) Regulations, 1994 (S.I. 292 of 1994).

(f) European Communities (Award of Public Works Contracts) (Amendment) Regulations, 1994 (S.I. 293 of 1994).

(g) European Communities (Review Procedures for the Award of Public Supply, Public Works and Public Services Contracts) (No. 2) Regulations, 1994 (S.I. 309 of 1994).

(h) European Communities (Awards of Contracts by Entities operating in the Water Energy, Transport and Telecommunications Sectors) Regulations 1995 (S.I. 51 of 1995).

(4) Words and expressions contained in this Order shall have the same meanings as in the Directives or the Regulations, as the case may be.

2. An application pursuant to the Regulations for the review of a decision to award or the award of a public contract within the scope of the Directives shall be made to the Court in accordance with the provisions of this Order.

3. An application for such review shall be made by originating Motion on Notice grounded upon a statement containing —

(i) the name, address and description of the applicant ;

(ii) the name, address and description of the contracting authority awarding the contract ;

(iii) a description of the contract ;

(iv) the alleged value of the contract ;

(v) the Regulation and Directive alleged to be applicable ;

(vi) the date of award of contract/decision to award a contract ;

(vii) a description of the procedure adopted by the contracting authority ;

(viii) the alleged infringement of the Regulations or the Directives, as the case may be ;

(ix) the date of the notification of the alleged infringement ;

(x) the relief sought (for example damages, injunction, declaration including whether suspension of the contract award procedures is being sought) ;

(xi) the grounds upon which relief is sought ;

(xii) the name, address and description of any affected parties ;

(xiii) the name and registered place of business of the applicant's solicitors (if any) ; and

(xiv) the applicant's address for service within the jurisdiction (if acting in person).

Such statement grounding the application shall be verified by an affidavit sworn by on or behalf of the applicant which verifies all of the facts relied upon and shall exhibit the notification to the contracting authority of the infringement alleged by the applicant and of his intention to seek a review and the response of the contracting authority thereto (if any).

4. An application for the review of a decision to award or the award of a public contract shall be made at the earliest opportunity and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending such period.

5. The notice of motion, statement grounding the application and verifying affidavit must be served on the contracting authority which has decided to award or has awarded the contract and on all other persons directly affected by the review proceedings and it shall be returnable for the first available motion day after the expiry of ten days from the date of service thereof unless the Court otherwise directs.

6. Any contracting authority or notice party who intends to oppose the application for review shall file in the Central Office a statement setting out concisely the grounds for such opposition and if any facts are relied on therein an affidavit verifying such facts. A copy of such statement and affidavit (if any) shall be served on all other parties not later than 7 days from the date of service of the notice of motion or such other period as the Court may direct.

7. (1) An affidavit giving the names and addresses of all persons who have been served with the notice of motion and the places and dates of such service must be filed before the motion is heard and if any person who ought to be served under this rule has not been served the affidavit must state that fact and the reason for it and the affidavit shall be before the Court on the hearing of the motion.

(2) If, on the hearing of the motion the Court is of the opinion that any person who ought to have been served whether under this rule or otherwise has not been served the Court may adjourn the hearing on such terms (if any) as it may direct in order that notice may be served on that person and the Court may make such order or give such directions pursuant to Order 10 or Order 11 as appears just and proper in the circumstances.

(3) The Court may, at any time it thinks fit, order that notification of an application for review (including notification of the suspension or of the lifting of the suspension of contract award procedures or of any Order that the Court has made be sent to such person, body or institution as may be appropriate or may direct that such application or order, as the case may be, be advertised in such manner, time and place as the Court thinks proper in the circumstances.

(4) The Court may, at any time and having regard to any of the issues raised in an application for review, direct that the application be sent for plenary hearing and may give such further directions as appear necessary in the circumstances.

8. (1) The Court may on the hearing of the motion allow the applicant or any other party to amend his statement whether by specifying different or additional grounds of relief or opposition or otherwise on such terms if any as it thinks fit and may allow further affidavits to be filed if they deal with new matters referred to in an affidavit of any other party to the application.

(2) where the applicant or any other party intends to apply for leave to amend his statement or to use further affidavits he shall give notice of his intention and of the proposed amendment to every other party.

9. At any time after the issue of the originating notice of motion an applicant for review may make any interim or interlocutory application to the Court for the taking of interim measures with the aim of correcting the alleged infringement or preventing further damage to the interests concerned including measures to suspend or to ensure the suspension of the procedure for the award of a public contract or the implementation of any decision taken by the contracting authority. In this rule interlocutory application includes an application for an order under Order 31 or Order 39, rule 1.

10. On the hearing of any motion any person who desires to be heard in opposition to the motion and appears to the Court to be a proper person to be heard shall be heard notwithstanding that he has not served with the Notice of Motion.

11. On the hearing of a motion for review the Court may make such order pursuant to the Directives and/or the Regulations as appears just and proper in the circumstances including an order providing for the costs of the proceedings or such further or other order as it thinks fit."

2. This rule shall come into operation on the 19th day of October, 1998.

3. This rule shall be construed together with the Rules of the Superior Courts, 1986 to 1998 and may be cited as the Rules of the Superior Courts (No. 4), (Review of the Award of Public Contracts), 1998.

EXPLANATORY NOTE

These Rules which come into operation on 19th October, 1998, prescribe procedures in relation to the review by the High Court, of the award or a decision to award a public services, public supply, public utilities or public works contract.