THE DIRECTOR of a philanthropic organisation which provides speech and language therapy for children is to launch a fund-raising campaign to enable her to pursue an action against the HSE.
Tara Cunningham is director of Release Communication Intervention (RCI), a not-for-profit organisation which had taken proceedings against the HSE challenging refusal of a contract to provide speech and language therapy.
RCI was the only tenderer offering the service, following a tender process.
The HSE was granted security for its costs in the case yesterday by the High Court. The order means the case cannot proceed until RCI has raised the money to secure the HSE’s likely costs, to be finalised by the High Court later this month, but which were initially estimated at €85,000.
RCI claimed the HSE breached public procurement law when it sought a speech therapy service on a pilot basis in 2007.
RCI was the only tenderer, but was unsuccessful, and is claiming the process lacked transparency and breached fair procedures. The group is claiming that, because the HSE did not award it the contract, it had to cease operations.
Eileen Barrington, counsel for the HSE, said it had issued a call for tenders to provide diagnostic speech and language intervention in the official EU journal in August 2007. The total value of the project was between €20,000 and €250,000. It was envisaged that the suppliers should be able to offer individual and group speech and language therapy.
Only one tender was submitted, that by the applicant, who provides “a very sophisticated process” to deliver speech therapy by way of group therapy only. The applicant does not provide individual therapy, she said. The HSE did not consider this tender met its requirements and rejected it.
Ms Barrington said that the EU directive clearly envisaged a situation where the body concerned might not award a contract.
Because RCI ceased trading at the end of 2009, with liabilities of €33,000, the HSE had sought security for its costs, she said.
Gerard Hogan SC, for RCI, said that under no circumstances could the HSE unilaterally withdraw a contract where it breached the rules of public procurement law. The HSE had failed to disclose in its invitation to tender decisive criteria for the tender award, including that individual therapy be provided.
Security for costs should not be awarded where the liability for costs flowed from the alleged wrong, as it did here, he said.
This was an 11th hour application for security, he said. The HSE should not get security for its costs because of its delay in seeking them. The proceedings began in 2008 but were delayed until now while the applicant sought information from the HSE through the Freedom of Information Act. The HSE could have sought security for costs in 2008, he said.
The HSE was under no illusions as to RCI’s financial status, as its accounts were given in the tender in 2007, and these showed it had accumulated losses of €52,000.
In granting the security for costs order, Mr Justice John Hedigan said he was bound by the principles outlined by the Supreme Court, unless there were special circumstances allowing him to exercise his discretion not to make it. They did not apply here. He found that the information that RCI had ceased trading was central to the respondent’s decision.