In Sere Holdings Ltd v Health Service Executive and IAS Medical Ltd [2024] IECA 197, the Court of Appeal allowed Sere’s appeal and remitted the case to High Court.

Sere ranked eighth in a tender process conducted by the HSE for emergency air ambulance services. In the High Court, Sere alleged that the winning tenderer had not satisfied the eligibility requirement to have turnover of €4 million relating to the tender services. Sere argued that the tender services were restricted to a transfer involving a patient (with a medical team on board specifically equipped aircraft). The HSE argued that the tender services also included the transfer by airplane of organs and organ retrieval teams. The High Court agreed with the HSE for reasons we summarised in our briefing: Procurement Update: High Court in Ireland upholds Awarding Authority Decision on Eligibility. We also looked at the High Court decision on costs here: Notice Party Costs: High Court outlines Principles in Procurement Decision.

The tender description in the Request for Tender described the services as “an emergency air ambulance service to transfers patients … between Ireland and other countries mainly the UK”. It stated that the “aircraft may also be required from time to time on a similar emergency basis to transport organ retrieval teams from one hospital to another.” There was no explicit mention of transporting organs alone. A Specification Response Document referred to Priority 1 missions and included organ retrieval teams and references to organ retrieval and organ retrieval mission(s). It did not clearly impose an obligation to transport organs as cargo, and there was evidence that organ-only flights tend to be treated as cargo, not requiring full air ambulance fit-out.

The Court of Appeal considered that the trial judge had been faced with a very large amount of contradictory evidence and had not heard independent third-party evidence. The Court of Appeal concluded that references to “organ retrieval missions” relate to teams, not organs alone.  A RWIND (reasonably well informed and normally diligent) tenderer would interpret the services as relating to the transfer of patients, transfer of organ retrieval teams, but not organ-only transport. The notice party had not met the turnover requirement if organ-only flights were excluded.

The High Court judgment was set aside and the matter remitted to the High Court to determine the appropriate relief, given that the contract was executed in April 2021.