Applegreen/Tedcastles challenge Topaz motorway contracts

Ray Managh

Applegreen and Tedcastles Oil Products are legally challenging the former National Road Authority's decision to award three new service station developments at Athlone on the M6, Kilcullen on the M9 and Gorey on the M11 to billionaire Denis O'Brien's Topaz Energy Group Limited.

Barrister Joe Jeffers told the High Court Friday that Applegreen and Tedcastles had formed a consortium, Superstop 2 to tender for the design, construction, operation and financing of the three new services areas.

He said Transport Infrastructure Ireland, formed only a fortnight ago by the coming together of the NRA and the Railway Procurement Agency, had told SuperStop that it had “determined” Topaz to be the most economically advantageous and therefore the preferred tenderer.

Mr Jeffers said his clients were seeking an order quashing the decision to award the contracts to Topaz.

He told Mr Justice David Keane they were also seeking to quash the decision on the basis of the manner in which the NRA had awarded marks to SuperStop in relation to its detailed tender. Applegreen and Tedcastles were seeking a complete reversal of the NRA’s determination and seeking orders requiring the NRA to re-select SuperStop as the most advantageous tenderer and the preferred tenderer.

Mr Jeffers was granted leave of the court to seek a judicial review of the NRA’s various decisions.

He told Judge Keane that SuperStop, in a specific instance, had tendered with regard to the lifespan of footpaths at the service stations rather than thickness.

There had been a tie in tenders and Topaz had been awarded a full 20 points in the tiebreak category on footpaths because it had tendered on thickness as against the 10 marks of SuperStop which had tendered on longevity.

The marks had been awarded in five categories of 20 and Topaz had ended up with 87 marks as against SuperStops 80 out of a total of 100, just a difference of seven.

Mr Jeffers said the life expectation of footpaths was 25 years and SuperStop had tendered on a lifetime of 40 years rather than on thickness.

“The NRA has breached SuperStop’s legitimate expectation that the tenders would be evaluated fairly and in accordance with published criteria,” Mr Jeffers said.

One of the declarations his clients was seeking was that the description of criteria was not sufficiently clear to enable a reasonably well informed and normally diligent tenderer to interpret them properly.

Mr Jeffers said the detail of a number of sub-criteria which impacted on the marking system was also being challenged by the SuperStop parent companies.

He said the contract notice had been published in the Official Journal of the European Union in March 2014 and was subject to the general principles of natural justice and fair procedures. The NRA was subject to the requirement to act reasonably, rationally, fairly and to provide detailed reasons for its decision.