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Important Procurement & Competition law Judgement for SME’s in Ireland

The Copymore procurement judicial review challenge (2013 No. 211 JR) has been published detailing the judgment of Mr. Justice McDermott delivered on 11th November, 2016.  This procurement challenge comprised 10 SME’s (“the Applicants”) taking High Court proceedings against the State Authority as to aspects of the public procurement process.

Mr. Justice McDermott noted that the ongoing exchange of Affidavits between the parties and the continuation of the discovery process throughout the hearing, gave rise to considerable difficulties for the Court.

Each of the Applicants was described as an SME in their supply of printers and devices to State Bodies.  The Applicants claimed the Framework Agreements the subject matter of the procurement legal challenge would prevent, restrict and distort competition in the market place and that the criteria used was disproportionate being contrary to Section 4(1) of the Competition Act, 2002.     Furthermore, the Applicants contended it was not possible for SME’s to form consortia as provided for in the procurement competition, as this would contravene sections 4 (1) and 4 (5) of the Competition Act, 2002.

Four of the Applicants whom had entered agreements to submit tenders with other commercial operators, were deemed not eligible to bring the procurement legal challenge claiming the reliefs sought.  Six of the Applicants who had not submitted a tender were found to be entitled to maintain their claims as to the lawfulness of the procurement process.

Their claims under disproportionate turnover requirements and distortion of the marketplace pursuant to Sections 4 (1) and 4 (5) of the Competition Act, 2002, were rejected.   The judgement provides an analysis of what comprises an “undertaking” in relation a State Authority pursuant to competition law.

Finally, the Court rejected the claim that the consortia requirement in the procurement process whether upon the terms of the Framework Agreements or upon implementation gave rise to a breach of competition law.

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