On 28 March 2018, the Irish Court of Appeal gave judgment on an appeal against the High Court's refusal to order discovery of parts of a successful tender in a public procurement process (Word Perfect Translation Services Limited v The Minister for Public Expenditure and Reform (No.2))1.
The case reflects two significant difficulties in public procurement disputes:
Balancing the competing interests of the disclosure of probative material, with the preservation of the confidentiality of highly sensitive documents; and Bringing forward a party's case in pleadings as effectively as possible in the limited time normally available, and the implications of this for discovery. Background
The proceedings concerned a challenge to the award by the Minister of Public Expenditure and Reform (the "Minister") of a contract for the supply of translation services to a number of State bodies.
In October 2015, the Office of Government Procurement (the "OGP") had sought tenders for the provision of interpretation services. Three suppliers, including Word Perfect Translation Services Limited ("Word Perfect") (the appellant), having previously been appointed to the relevant framework, participated in a mini-tender for a particular lot.
Word Perfect's tender was unsuccessful and it indicated that it intended to challenge the award. This prompted the OGP to review the tender process and to conclude that the process was flawed. Accordingly, it cancelled the mini-tender process.
In December 2016, the OGP issued a new mini-tender. In April 2017, Word Perfect was notified that it was not the preferred tenderer. Word Perfect issued proceedings in May 2017 challenging this decision and sought discovery of, amongst other things, the preferred tender.
On 16 March 2018, the High Court refused to order discovery of this material on the basis that it was irrelevant. On appeal, Word Perfect confined the discovery it sought to three sections of the preferred tender (the service delivery plan; the quality assurance plan; and details of telephone resourcing).
Discovery in Public Procurement Challenges
The Court of Appeal (Hogan J) firstly emphasised the particular importance of pleadings to discovery in procurement cases, in which "the parties are expected to bring forward their entire case with particularity within a short period of time and where the possibility of amendment [...] is generally limited".
Having reviewed the relevant portions of the Statement of Grounds...