Firm that lost State Exams tender awarded legal costs
The High Court has ruled that a firm which lost out on the tender to set up an online marking system for the 1.5 million Leaving and Junior Cert exam scripts is entitled to its legal costs of a case it brought against the State Examinations Commission (SEC).
Mr Justice Max Barrett held that Ballinasloe, Co. Galway-based KPW Business Forms Ltd, was entitled to its costs of judicial review proceedings it brought challenging the SEC's decision to award a tender to a rival UK RM results firm for €5m.
The company, trading as KPW Print, brought its judicial review action in April of last year. However the following month, the SEC decided to withdraw the tender, rendering the proceedings moot or pointless.
In its action, KPW which had operated an online marking pilot scheme for the SEC between 2014 and 2017, claimed the decision to award the UK company was flawed and should be quashed on grounds including alleged bias.
In correspondence, the SEC had denied KPW's claims and denied any wrongdoing.
After the case became moot KPW sought its legal costs from the SEC, estimated to be in five figures.
The SEC opposed that application and argued that the appropriate order was that each side should pay their own costs.
In his judgment, Mr Justice Barrett said he was satisfied to make an order of costs in favour of KPW.
He was also satisfied that had it not been for the proceedings being brought against the SEC then the award of the contract would not have been withdrawn.
He held that the SEC had made "a unilateral decision" not to award the contract, rendering the proceedings moot.
The proceedings, he said, did not become pointless due to "a factor outside of the control" of either party involved in the case or any third party that has "no causal nexus" with the action.
The SEC, the judge said, could have arrived at an alternative decision and could have come to court.
In the context of a tendering process, the SEC, he added, was also free to take the decision it did.
