Kerrigan Sheanon Newman Unlimited Company (KSN) sought access to Abtran's pricing details after losing a contract for surveying properties undergoing retrofitting in Ireland. The court refused the request, emphasizing the importance of protecting confidential tender information and maintaining fair competition in public procurement.
A losing bidder for a contract to provide surveys for the retrofitting of hundreds of thousands of properties throughout Ireland has failed to get access to confidential pricing information from the successful firm. The contract, estimated to be worth €75 million and set to last up to five years, was awarded by the Sustainable Energy Authority of Ireland (SEAI) to Abtran last June.
KSN, the incumbent provider of services including building energy ratings (BERs), surveys, and inspections, claimed Abtran's tender was too low, being 30 percent lower than the price currently paid to KSN. In a bid to challenge the award, KSN sought discovery of documents and materials from the SEAI relating to Abtran's tender, specifically its pricing structure. However, Mr. Justice Michael Twomey refused the discovery, stating that KSN did not provide compelling arguments to justify accessing such confidential information. The judge emphasized the need to protect the integrity of public procurement and discourage losing bidders from challenging processes solely to gain access to competitors' sensitive pricing data. He highlighted the potential for undermining competition and the importance of encouraging open and transparent tendering practices. While KSN argued that Abtran's pricing appeared abnormally low because it quoted for BER, inspection, and survey services during a single site visit, a practice not permitted by the statement of requirements, the judge deferred the interpretation of these requirements to the full hearing of the case. The court concluded that disclosing a winning tenderer's pricing structure should only occur in exceptional circumstances, where it is absolutely necessary to achieve a just resolution. It cautioned that granting such access could give an unfair advantage to the losing bidder in future tenders, as seen in KSN's own reluctance to disclose its pricing information when it won the 2011 contract.
RENEWABLE ENERGY PUBLIC PROCUREMENT CONTRACT DISPUTE SURVEY SERVICES COMPETITION LAW
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