The High Court in Ireland dismissed a challenge to the decision by the Sustainable Energy Authority of Ireland (“SEAI”), following a competitive dialogue procedure, to award a contract to Abtran Unlimited Co (the “notice party”) for certain management agent services (for pre-building energy ratings (“BER”) assessments, home energy surveys, post-BER assessments, inspections and quantity checks, and value added services).
Kerrigan Sheanon Newman (the “applicant”) had been appointed in previous competitions. The High Court dismissed the applicant’s two grounds of challenge in a judgment that is available here: Kerrigan Sheanon Newman v Sustainable Energy Authority of Ireland and Abtran [2026] IEHC 70.
Decision on commercially sensitive evidence
Previously, the parties had agreed that access to discovery documents would be confined to a ‘confidentiality club’ comprising legal representatives and the experts engaged by each side, and the Court had ruled that executives of the applicant were not included.
During the substantive hearing, the Court decided that a part‑private hearing was justified and so executives of the applicants left Court when certain portions of the evidence were heard. This is unusual but reinforces a recognition by the Irish Courts that commercially sensitive information in tender processes needs to be dealt with sensitively (even for Court processes). The Court noted that, where this type of issue arises, it should be addressed at the earliest stage possible in proceedings.
Ground 1: The methodology claim
The applicant argued that the SEAI accepted a methodology in the winning tender that was different from that prescribed in the tender documents. The winning tender included the combining of BER assessments with other services in a single visit to a property. It also included a proposal for a pilot scheme for the “uberisation” of BER assessments, along with a price for core services on the assumption of a successful pilot.
The Court dismissed this claim. Clarifications during the procurement included a statement that it was permissible for surveys and BER assessments to be combined (subject to a prohibition on the same person carrying out certain other services). The clarifications were consistent with, and had not altered, the tender documents. There was no evidence that a reasonably well-informed and normally diligent tenderer (“RWIND”) would have looked to the previous competitions (as the applicant argued they would) to interpret the contents of the current tender documents. While the pricing schedule did not expressly provide for combining services, it was plausible (given industry practice) that a tenderer would have considered combining services to be possible. This is a useful reminder that tender documents need to be read on a standalone basis.
The Court also dismissed an alternative argument that there had been a lack of transparency in the tender documents. Even if the Court had found that there had been ambiguity, any challenge was statute‑barred because under the Remedies Regulations the applicant “ought to have known” of an infringement when the relevant clarification issued in March 2024 during the tender process. This is a restatement of the importance of bringing cases within the applicable time limits and that bidders cannot “have their cake and eat it” by bidding on tender documents which they (much) later allege are unclear.
Ground 2: The pricing claim
The SEAI identified the notice party’s bid as one which appeared abnormally low. It sought an explanation in accordance with Regulation 69 of the Public Contracts Regulations and the responses were reviewed independently. The notice-party provided information on bottom-up pricing for each activity, margin rationale, labour/non‑labour costs, efficiencies to be delivered through transformation initiatives including generative AI and automation, and the “uberisation” pilot. SEAI’s pricing evaluation team produced an assessment concluding the tender was not abnormally low.
The Court was not required to assess whether the tender was abnormally low, but rather whether SEAI made an obvious error in concluding that it was not abnormally low. This is a useful reminder of the deference afforded to decision makers and experts responsible for tender processes and that Courts will be slow to undertake a subjective analysis of the judgment of decision makers. In response to arguments made by the applicant, the Court found that it was not a clear error to assess the tender without obtaining details of the notice-party’s gross margin (or margin for risk). Further, the notice-party explained why precise contractor numbers were unknown and confirmed that all costs for services were included in the tendered rates, whether performed by permanent staff or contractors.