A contract award for a multi-million pound roads project aimed at easing traffic congestion in Belfast was unlawful, the Court of Appeal held today.
Senior judges rejected attempts by the Department for Infrastructure to overturn an earlier ruling which quashed the outcome of its procurement process for the York Street interchange.
Their verdict raises the prospect of further hold-up for a road improvement scheme aimed at transforming traffic flow at the intersection of the Westlink, M2 and M3 – one of Northern Ireland’s busiest junctions.
Proceedings were initially brought by plaintiffs BAM Civil Ltd and FP McCann Ltd, a joint venture which narrowly failed to win the contract.
In October last year the High Court set aside the Department’s allocation of the public works to rival joint venture tenderer Graham Farrans.
Upholding the grounds on which the contract award was originally found to be unlawful, Lord Justice Deeny concluded that BAM-FP McCann were wrongly marked down because of a reference to value engineering.
He said: “It may well seem regrettable that a much needed and very important piece of road improvement has been delayed because the panel evaluating the two tenders made two quite narrow errors in their assessment.
“However, those two narrow errors, it is agreed, were enough to alter the award of the contract between the plaintiffs and the previously successful tenderer.”
With an estimated cost of between £130m and £165m, the project is expected to take around three years to complete.
It was to be funded through some of the £1bn spending package pledged to Northern Ireland under the DUP-Conservative Party pact at Westminster.
In 2017 the Department announced the process to appoint a contractor had been completed.
But the tender award was delayed after BAM-FP McCann mounted a legal challenge.
Following a High Court ruling that the decision making and evaluation processes had been legally flawed, the contract award was quashed.
Lawyers for the Department were appealing that outcome.
The court heard a narrow margin separated the two rival bids following assessments on the price and quality of their tenders.
Lord Justice Deeny, sitting with Lord Chief Justice Sir Declan Morgan, pointed out that the plaintiffs were “comfortably ahead” on the issue of cost, but identified a flaw in the evaluation and allocation of total marks.
He confirmed: “We therefore uphold both the grounds on which the judge found the award of the contract to be unlawful.”