The Court of Appeal (CoA) has set aside a decision to award a €9.5 million contract for the after-hours emergency air ambulance service between Ireland and other countries, primarily the UK.
Sere Holdings Ltd, which came eighth and last in the tender process, brought the challenge which was rejected by the High Court last year. It appealed and the CoA overturned the decision.
In its action, Sere claimed the contract winner, IAS Medical Ltd, did not satisfy a requirement that each bidder must have a turnover of €4 million for the previous three years in relation to the services it was bidding for.
Sere asked the court to set aside the award of the contract to IAS under the European Communities (Public Authorities’ Contracts) (Review Procedures) Regulations 2010, known as the “Remedies Regulations”. The Sere challenge was against the HSE, which funds the service. IAS was a notice party.
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Sere appealed the High Court decision and in allowing the appeal, Mr Justice Brian O’Moore, on behalf of the three-judge CoA, set aside the decision and sent the case back to the High Court for a new determination on what, if any, reliefs Sere is entitled to.
The High Court will also have to take into account the fact that the contract was not only awarded but executed in early 2021, Mr Justice O’Moore said. He said that despite “a very careful consideration of the tender documents” by the High Court, it did not not come to the correct conclusion as to what a “reasonably well-informed, normally diligent” tenderer would make of them.
Mr Justice O’Moore said although the request for tenders document issued to prospective bidders by the HSE sought bids to provide an air ambulance service for the transport of patients and for the transport of “organ retrieval” teams from one hospital to another, it did not state that it was also for the transport of organs themselves which can be done without patients or organ retrieval teams.
In the judge’s view, a reasonably well-informed tenderer would take the view that the request for tender description did not include the transport of organs among the specific services to be provided.
On the basis of the agreed position with regard to the figures, therefore, the turnover requirement of €4 million with regard to the specific services was not met by IAS, he said. He would, therefore, allow the appeal.
Air ambulances both inside and outside Ireland are generally provided by the Irish Air Corps and the Irish Coast Guard Services under existing arrangements. But they are unable to provide it between 7pm and 7.30am, and 7pm to 8.30am in June, July and August. This is why a private contractor is needed for the after-hours service.
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