Word Perfect Translation Services v The Minister for Public Expenditure and Reform

• Jurisdiction: Ireland
• Court: Court of Appeal (Ireland)
• Judge: Mr. Justice David Barniville
• Judgment Date: 28 February 2025
• Neutral Citation: [2025] IECA 45
• Docket Number: COURT OF APPEAL RECORD No. 2022/72

Between

Word Perfect Translation Services Limtied

Appellant

and

Minister for Public Expenditure and Reform

Respondent

[2025] IECA 45

Barniville P.

Edwards J.

Faherty J.

COURT OF APPEAL RECORD No. 2022/72

THE COURT OF APPEAL

CIVIL

Request for tenders – EU law – Bias – Appellant appealing from the dismissal of the appellant’s challenge to the respondent’s decision to adopt and publish a request for tenders – Whether the request for tenders breached EU law

Facts: The appellant, Word Perfect Translation Services Ltd (Word Perfect), appealed to the Court of Appeal from a decision of the High Court (Twomey J) in a judgment given on 24 February 2022 ([2022] IEHC 101), and from the order of the High Court perfected on 11 March 2022. In that judgment and order, the High Court dismissed Word Perfect’s challenge to the decision of the respondent, the Minister for Public Expenditure and Reform (the Minister), through the Office of Government Procurement (the OGP) to adopt and publish a Request for Tenders (dated 27 May 2020) to establish “four single supplier framework contracts for the provision of interpretation services (excluding Irish language services)” (the RFT). The purpose of the RFT was to establish a framework for the award of four single supplier framework contracts for the provision of interpretation services (excluding Irish language services). Word Perfect sought to challenge two aspects of the RFT: (i) the decision by the OGP on behalf of the Minister to divide the procurement, the subject of the RFT, into lots (the lots decision); and (ii) the provision that any one tenderer could only win one lot (the one lot rule). Word Perfect challenged those two aspects on several grounds, including on the grounds of an alleged breach of certain provisions of the applicable EU Directive, Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC, of certain provisions of the EU Treaties (the TEU and the TFEU) and the EU Charter of Fundamental Rights (the Charter) and of a number of the general principles of EU law, including equal treatment, competition and proportionality. Word Perfect also raised other grounds including the alleged taking into account by the Minister/OGP of irrelevant considerations and alleged objective or apparent bias.

Held by Barniville P that the High Court judge was correct in his decision as to the lawfulness of the two aspects of the RFT which were challenged by Word Perfect, namely, the ‘lots decision’ and the ‘one lot rule’. Barniville P was satisfied that the judge was correct in concluding that neither the ‘lots decision’ nor the ‘one lot rule’ breached the 2014 Directive, any of the provisions of the EU Treaties or the Charter or any of the general principles of EU law relied upon by Word Perfect. Barniville P was also satisfied that the High Court judge was correct in rejecting Word Perfect’s challenge to the decision to adopt the RFT on the grounds of taking into account irrelevant considerations and on the grounds of alleged objective or apparent bias.

Barniville P was satisfied, therefore, that Word Perfect’s appeal should be dismissed.

Appeal dismissed.

[APPROVED]

[NO REDACTION NEEDED]

JUDGMENT of Mr. Justice David Barniville, President of the High Court, delivered on the 28 ^th day of February 2025

Index

1. Introduction	6
2. Brief Overview and Summary	6
3. Factual Background	7
(1) Introductory Remarks	7
(2) The Parties	8
(3) The 2015 Framework	8
(4) The Market and Market Shares	9
(5) Process leading up to adopting of RFT	9
(6) The Sourcing Strategy	10
(7) The RFT for the 2020 Framework	14
(8) Procurement Guidelines and Circular 10/14	16
4. Challenge to the RFT	17
5. Relevant Provisions of the 2014 Directive	18
(1) Introductory Remarks	18
(2) The Recitals	19
(3) Articles of the 2014 Directive	22
6. The Judgment of the High Court	26
(1) Background and context	26
(2) Economist's “speculation”	27
(3) The ‘lots decision’	28
(4) The ‘one lot rule’	30
(a) Burden of Proof	30
(b) Article 18 of 2014 Directive	32
(c) Unlawful distortion of competition?	32
(d) Word Perfect prevented from building market share?	36
(e) Breach of principle of equal treatment?	36
(f) Breach of principle of proportionality?	37
(g) Irrelevant considerations and objective bias?	38
(h) Other arguments	38
7. Word Perfect's Appeal	39
(1) Grounds of appeal	39
(2) Respondent's response	40
8. Submissions on the Appeal	40
(1) Word Perfect's submissions	40
(a) Overarching submissions	40
(b) The ‘lots decision’	41
(c) The ‘one lot rule’	42
(i) Impact on operators	42
(ii) Need for compatibility with Treaties and general principles	42
(iii) No margin of discretion	43
(iv) Burden of proof	43
(v) Breaches of general principles?	44
(I) Equal Treatment	44
(II) Proportionality	45
(III) Principle of Competition	45
(vi) Article 18 of 2014 Directive	49
(vii) Freedom to Conduct a Business/Provide Services – Article 16 of the Charter and Article 56 TFEU	49
(viii) Duty of Sincere Cooperation: Article 4(3) TEU	50
(d) Irrelevant Considerations	50
(e) Apparent/Objective Bias	51
(f) Word Perfect's Criticism of the Judge's Treatment of Expert Evidence	51
(2) The Respondent's Submissions	52
(a) Overarching submissions	52
(b) The ‘lots decision’	52
(c) The ‘one lot rule’	54
(i) Rationale for the rule	54
(ii) Margin of discretion	55
(iii) Burden of proof	55
(iv) Segmentation of market	56
(v) Distortion of competition: “Classic trade-off”	56
(vi) Linkage to subject matter of contract	56
(vii) Breach of general principles	57
(I) Equal Treatment	57
(II) Proportionality	57
(III) Principle of Competition	58
(viii) Article 18 of 2014 Directive	60
(ix) Freedom to Conduct a Business/Provide Services – Article 16 of the Charter and Article 56 TFEU	60
(x) Duty of Sincere Cooperation: Article 4(3) TEU	61
(d) Irrelevant Considerations	61
(e) Apparent/Objective Bias	61
(f) Response to Word Perfect's Criticism of Judge's Treatment of Expert Evidence	62
9. Analysis and Decision	62
(1) Introductory Remarks	63
(2) Significance of Article 46 of 2014 Directive	63
(3) The ‘lots decision’	64
(a) Aspects of the challenge considered	64
(b) Absence of concluded contract	64
(c) Interpretation of Article 46 of 2014 Directive	65
(d) The “technical” argument: A contract	68
(e) Designation of lots	69
(f) Article 37 of 2014 Directive	70
(4) The ‘one lot rule’	71
(a) Approach to determination of the issue	71
(b) Background to Article 46(2) and Recital (79)	72
(c) Interpretation and application of Article 46(2) of 2014 Directive and Recital (79)	75
(d) Principles governing exercise and discretion under Article 46(2)	76
(e) Relevance of the general principles and “manifest error” test	77
(f) Burden of proof	80
(g) Equal Treatment	82
(h) General Principle of Competition	84
(i) General principle of Proportionality	96
(5) Article 18 of 2014 Directive	99
(6) Freedom to Provide Services (Article 56 TFEU) and Freedom to Conduct Business (Article 16 of the Charter)	102
(a) Article 56 TFEU	102
(b) Article 16 of the Charter	104
(7) Duty of Sincere Competition: Article 4(3) TEU	106
(8) Irrelevant Considerations	109
(9) Apparent/Objective Bias/Principles of Good Administration and Objectivity	111
(10) Judge's Treatment of Expert Evidence	114
(a) Burden of Proof on Mr. Massey: Alleged Misunderstanding of Role of Expert	114
(b) Alleged Failure to Engage with the Expert Evidence	115
(c) Failure to Discharge Burden of Proof	119
(d) Final Observation on the Experts	121
10. Article 267 Reference	122
11. Summary of Conclusions	123
12. Provisional View on Costs	123

1. Introduction

1 . This is my judgment on an appeal by the Appellant, Word Perfect Translation Services Limited (“Word Perfect” or the “Appellant”), from a decision of the High Court (Twomey J.) in a judgment given on 24 ^th February 2022 ( [2022] IEHC 101), and from the order of the High Court perfected on 11 ^th March 2022. In that judgment and order, the High Court dismissed Word Perfect's challenge to the decision of the Minister for Public Expenditure and Reform (the “Minister” or the “Respondent”), through the Office of Government Procurement (the “OGP”) to adopt and publish a Request for Tenders (dated 27 ^th May 2020) to establish “four single supplier framework contracts for the provision of interpretation services (excluding Irish language services)” (the “RFT”). The procurement, the subject of the RFT, has not been proceeded with pending the determination of the proceedings in the High Court and this appeal.

2. Brief Overview and Summary

2 . The purpose of the RFT was to establish a framework for the award of four single supplier framework contracts for the provision of interpretation services (excluding Irish language services (the “2020 Framework”). Word Perfect sought to challenge two aspects of the RFT:

• (i) the decision by the OGP on behalf of the Minister to divide the...