Public Procurement Case Law Update: Sanofi v HSE

Life Sciences businesses eagerly awaited the High Court judgment of 12 October on Sanofi v HSE. It is the first final Irish court judgment on a challenge of a tender for supply of a pharmaceutical product, namely the '6-in-1' vaccine, and it sets a higher standard of procedural fairness for the HSE to meet in future tenders. It is also the first procurement judgment of McDonald J., who was recently appointed to the High Court and has provided a welcome clear and comprehensive summary of the law.

While Sanofi failed to overturn the HSE tender which selected GlaxoSmithKline as the winner, it did obtain a declaration that HSE had infringed its rights and must provide additional information to it. Sanofi's main argument was that the HSE failed to provide adequate reasons for its decision and this was rejected except in relation to the reasons provided for two 'sub-sub criteria'. Sanofi also argued unsuccessfully that the HSE had (i) failed to disclose criteria and (ii)