Education Sector Procurement – Court Support for Dynamic Shortlisting Systems

Introductory Summary

The High Court of Northern Ireland has dismissed an application for judicial review which challenged the Education Authority’s Dynamic Shortlisting System (DSS). The application challenged the decision of the Education Authority to limit the lead contractor in DSS construction contracts to qualified architects. Upon review of the evidence presented to the court, Humphreys J dismissed the application on the basis that the matter was one of professional judgement in which the Court would not interfere.

The Parties

The applicants, in this case, were the President of the Chartered Institute of Architectural Technologists (the “CIAT”) together with the CIAT itself (the “Applicants”). The CIAT is the representative body for construction industry professionals “Chartered Architectural Technologists (“CATs”).

CATs are building design specialists, separate and distinct from architects. Both groups have been granted Royal Charters and are regulated by their respective professional bodies.

The respondent, in this case, was the Education Authority (the “Respondent”). The Respondent is a non-departmental public body, sponsored by the Department of Education, responsible for delivering all primary and secondary education in Northern Ireland.

The basis of the challenge

The Respondent uses a Dynamic Shortlisting System (DSS) to procure a list of contractors for construction-related projects within the education sector. There are two distinct construction procurement categories within the Education Authority – Major Works and Minor Works. The Major Works department delivers above-threshold requirements for public procurement competition, while Minor Works deliver below-threshold requirements.

The Building Design requirements within Education Authority can be further broken down into four main categories based on scale, scope and complexity being; large complex new build school projects (Major Works), complex minor works projects (DSS Minor Works), semi-complex minor works projects (DSS Minor Works), and straight-forward minor works projects (below the scope of the Minor Works DSS).

Once on the DSS list, contractors are randomly rotated, and expressions of interest are sought. A maximum of six contractors can then be invited to tender for an individual project. The DSS is maintained for a period of ten years, and applicants can seek inclusion on the list at any time.

The Memorandum of Information for the DSS competition makes it clear that all contractors must have, within its team, an architect. Only architects can act as lead consultants on DSS construction projects.

As firms of CATs seldom employ architects, this restriction has the practical effect of excluding a firm of CATs from applying to join the DSS. However, as firms of architects often employ CATs, it would not be uncommon for CATs to assist architects in developing the design for DSS projects. Further, it would not be uncommon for a firm of CATs to lead straightforward minor works projects below the scope of the DSS.

The Applicants brought an application for judicial review on behalf of all CATs, challenging the decision of the Respondent to restrict the role of lead consultant for work streams under the DSS to qualified architects (the “Decision”). It was the Applicants’ position that all of the roles required by the DSS fell within the competence of CATs and that, accordingly, the decision that leads contractors to be restricted to qualified architects served to artificially narrow the applicant pool available.

The Applicants contended that by artificially narrowing the applicant pool, the Respondent had acted unlawfully and in breach of their obligation to assure value for money under the Northern Ireland Public Procurement Policy (‘NIPPP’). Further, the Applicant contended that the Respondent had fettered its discretion by failing to consider the inclusion of CATs as lead consultants. It was additionally contended that the decision was irrational in the Wednesbury sense.

The application was heard before Mr Justice Humphreys in November 2022.

Judgment

In delivering judgment, the Court noted the maintained position of the Court of Justice of the European Union that contracting authorities enjoy discretion in relation to the technical and professional ability standards fixed by any given procurement competition.

Accordingly, while all selection criteria serve to narrow the pool of potential tenderers in a procurement competition, the use of selection criteria would not automatically make a procurement exercise anti-competitive.

The Court identified the specific question, in this case, to be whether the requirement that a contractor holds a particular professional qualification served to artificially narrow the pool of applicants, outside of the permitted discretion of the contracting authority, in breach of the NIPPP.

The background of the Respondent’s procurement panel was of particular note to the Court, with the panel members together holding a wealth of internal and external construction experience.

In light of the expertise available to the panel, the Court was unable to accept the Applicant’s contention that no reasonable decision maker could have been satisfied that it possessed the material necessary to make the decision in question. On the contrary, the panel was made up of experienced construction professionals familiar with the requirements of the Education Authority and who were fully apprised of the respective roles and abilities of architects and CATs, amongst others. On this basis, the Applicant’s contention that the decision was unreasonable on the Wednesday since it failed on evidence. Similarly, it was considered implausible that the Respondent could have failed to consider the ability of CATs to fulfil the role of lead contractor.

Once it was established that the panel possessed the necessary material to make the challenged decision, the decision to narrow the selection criteria became one of professional judgment in which the Court would not interfere.

For these reasons, the applicant’s application for judicial review was dismissed. Those in the education sector using similar DSS procurement models will welcome this judgment. It is, in the right circumstances, a flexible and useful procurement tool for education sector work, albeit important that the evaluation panels are experienced in the area for selection.

Carson McDowell LLP acted for Education Authority in this application.

If you would like any further information or advice, please contact Alison McClean from the Commercial Litigation team.

*This information is for guidance purposes only and does not constitute, nor should be regarded, as a substitute for taking legal advice that is tailored to your circumstances.