M50 tolling contract challenge rejected

By Ann O'Loughlin

An American multi-national tolling technology company has failed in a High Court challenge to the awarding of the €200m-€400m contract to operate tolls on the M50 and on other roads in Ireland.

Transcore LP sued the National Roads Authority, now Transport Infrastructure Ireland (TFI), over the awarding of the contract to Turas, a consortium made up of Abtran Ltd, Vinci Concessions SAS and Vinci Highways SAS.

Turas was a notice party in the case and an application by the current toll operator, Emovis Operations Ireland, to intervene when the Transcore proceedings had nearly concluded was refused by Mr Justice David Barniville.

Emovis, which was also an unsuccessful bidder, has its own separate proceedings pending before the court over the public procurement contest. The existing contract with Emovis has been extended and will expire in March 2019. An automatic suspension on the awarding of the new contract remains in place pending determination of those proceedings.

The court heard the M50 is one of the most heavily trafficked and strategically important corridors on the national roads network with on average 136,000 vehicles per day travelling through the tolled section.

Mr Justice Barniville today dismissed the Transcore challenge.

Transcore is a Nashville, Tennessee, USA, registered, wholly owned subsidiary of Roper Technologies Inc, a New York Stock Exchange-traded Standard and Poor's 500 corporation, with annualised revenues in 2016 of €3.54bn. It specialises in innovative tolling system technology around the world.

Mr Justice Barniville said while there were many issues of fact ventilated during the hearing, it was common case that the essential question for him to decide was the interpretation of the quality scoring matrix in respect of one of the criteria used for evaluating one of three delivery plans required to be prepared and presented by each bidder.

Transcore challenged the TFI's interpretation and application of the scoring matrix in relation to one of the marks given to Turas in respect of the criteria under which the delivery plan was to be evaluated.

Transcore said the TFI misapplied or misinterpreted the scoring matrix. Had Transcorebeen awarded one more mark, it would have achieved a higher overall score.

The TFI, supported by Turas, disputed the claims.

The judge said the apparent simplicity of the issue of interpretation (of the scoring matrix) was somewhat illusory due in no small part to the quality of advocacy in the case. This had made his (the judge's) task "in determining the issue in the case somewhat more difficult than perhaps it ought to have been".

Having reflected extensively on the issue of interpretation, the judge came to the conclusion that the interpretation of the tender documentation put forward by the TFI was clearly correct.

He was satisfied Transcore failed to establish any breach of the rules of the procurement competition or any breach of the general principles of EU law which applied to the competition.

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