Stewart's Hospital Foundation yesterday lost a High Court challenge to the refusal of the Minister for Tourism, Sport and Recreation to entertain its tender for construction of the country's first Olympic-size swimming pool.
The foundation, a registered charity with an address in Palmerstown, Dublin, had objected to the process adopted for awarding the contract for a 50-metre pool. It had tendered a proposal to build such a facility at Balgaddy, near the M50 motorway, and argued that the Department was not entitled to judge its tender ineligible because it had sought initial State funding of £23.6 million.
Last August the Department wrote to bidders saying it would provide a capital grant of £6 million to the successful tenderer, plus an annual subvention of £250,000.
In a reserved judgment yesterday, Mr Justice Geoghegan said the Minister had publicly advertised for applications to be included in a list of companies invited to tender for construction of a 50-metre pool. Stewart's Foundation applied and was accepted.
It was sent "invitation to tender" documentation. The letter enclosing that documentation made it clear that the draft contractual document would be sent later. Stewart's went ahead and incurred expenditure preparing a tender.
When the contract documents ultimately arrived, the letter accompanying them made clear that the State funding which would be available to the successful tenderer would consist of a capital grant of up to £6 million and an operational subsidy up to £250,000 a year for 20 years. These were intended as maxima. Stewart's complained that in laying down this stipulation the Minister was introducing new criteria at a late stage and was in breach of an EEC council directive.
The judge said the case rested on whether the Minister was in breach of the directive. He found there was compliance with the directive. If, as appeared to have happened, Stewart's had spent considerable money before it discovered the amount of funding the State was prepared to provide, it incurred that expenditure at its own risk. An officer of the Department had stated in an affidavit that he believed the Minister could not proceed to consider Stewart's proposal, which was dependent on a capital grant of £23.6 million, when it had been indicated clearly to all tenderers that the maximum capital grant for the project would be £6 million, with the operational grant of £250,000 a year.
The officer said he was advised that Stewart's Hospital was validly disqualified. Mr Justice Geoghegan said he thought the officer was correct in that view and that it would be wrong to entertain Stewart's tender, which fundamentally departed from an essential background fact against which the tenders were to be made - that the Government grant would be subject to certain specified limits.