Word Perfect Translation Services Ltd v The Minister for Public Expenditure and Reform (No.2)

• Jurisdiction: Ireland
• Judge: Mr. Justice Gerard Hogan
• Judgment Date: 28 March 2018
• Neutral Citation: [2018] IECA 87
• Date: 28 March 2018
• Court: Court of Appeal (Ireland)
• Docket Number: Neutral Citation Number: IECA 87 Record No. 2018/118

[2018] IECA 87

THE COURT OF APPEAL

Hogan J.

Peart J.

Hogan J.

Gilligan J.

Neutral Citation Number: IECA 87

Record No. 2018/118

IN THE MATTER OF THE REVIEW OF THE AWARD OF A PUBLIC CONTRACT PURSUANT TO THE EUROPEAN COMMUNITIES (PUBLIC AUTHORITIES' CONTRACTS) (REVIEW PROCEDURES) REGULATIONS 2010 AND ORDER 84A OF THE RULES OF THE SUPERIOR COURTS (AS AMENDED)

BETWEEN

WORD PERFECT TRANSLATION SERVICES LIMITED

APPELLANT

- AND -

THE MINISTER FOR PUBLIC EXPENDITURE AND REFORM (NO. 2)

RESPONDENT

Discovery – Relevance – Contract– Appellant seeking discovery of three particular sections of a winning tender document – Whether discovery was relevant

Facts: The appellant, Word Perfect Translation Services Ltd, issued proceedings on 8 May 2017 challenging the proposed award by the respondent, the Minister for Public Expenditure, of a contract for the supply of translation services to the State's immigration services (including the International Protection Appeals Tribunal) and the Legal Aid Board to Translation.ie. On 28 June 2017 the Minister issued a motion pursuant to Article 8A of the European Communities (Public Authorities Contracts Review Procedures) Regulations 2010 seeking to have the automatic stay on the execution of the contract lifted. The Minister originally succeeded in the High Court but an appeal by Word Perfect was successful in the Court of Appeal. The dispute which then arose was whether Word Perfect was entitled to discovery of three particular sections of the winning tender document which had been submitted by Translation.ie, namely the service delivery plan, the quality assurance plan and telephone resourcing. In his judgment delivered on 16th March 2018 Barrett J refused to order discovery on the ground that the material was not relevant. Word Perfect appealed to the Court of Appeal against the High Court's refusal. The focus of the appeal was whether the conclusion as to relevance was correct.

Held by Hogan J that he would dismiss the appeal insofar as it related to discovery of the Translation.ie tender dealing with the service delivery plan. Hogan J held that he would, subject to certain confidentiality commitments, direct the Minister to make discovery of the relevant portion of the Translation.ie tender dealing with the quality assurance plan. Hogan J proposed that the order of the High Court be varied and that the telephone resourcing aspect of the motion should be adjourned to the trial of the substantive action; it would be for the trial judge to determine afresh in the light of this judgment whether access to that part of the tender documentation is indispensable.

Hogan J held that the specific confidentiality requirements could be met in the first instance by stipulating that only named solicitors and counsel retained by Word Perfect will be permitted to have sight of the discovered material comprising that part of Translation.ie tender dealing with the quality assurance plan; any further applications in that regard could be made to the High Court, but any such application must also be made by motion which is on notice not only to the Minister, but also to Translation.ie.

Appeal allowed.

JUDGMENT of Mr. Justice Gerard Hogan delivered on the 28th day of March 2018

1 This is now the second appeal on an interlocutory matter which this Court has been required to address in these public procurement proceedings in the space of a few weeks. In the first judgment, Word Perfect Translation Services Ltd. v. Minister for Public Expenditure and Reform [2018] IECA 35, this Court held that as the damages recoverable under the European Communities (Public Authorities Contracts Review Procedures) Regulations 2010 ( S.I. No. 130 of 2010)('the 2010 Regulations') were confined to Francovich damages, this mean that damages would not be an adequate remedy for the appellant in the event that its public procurement was to be prove successful. The net effect of that conclusion was that this Court refused to make an order lifting the automatic stay

2 While this Court held that the automatic stay provided for in the Regulations should not, therefore, be lifted, we did require nonetheless that the substantive proceedings should proceed with dispatch. As the substantive action is now listed for hearing in the High Court on 18th April 2018, this Court has now been required to hear an appeal brought by Word Perfect against the refusal of the High Court in a judgment delivered on 16th March 2018 to direct the discovery of parts of the successful tender document which is at issue in these proceedings.

The background to the present proceedings

3 Before considering the ambit of this discovery request and the appeal presently before us, it is first necessary to say something about the background to the proceedings. The appellant company is the supplier of specialist translation services to a range of State bodies. These public procurement proceedings which have been brought by it concern a challenge to the award by the Minister for Public Expenditure of a contract for the supply of translation services to the State's immigration services (including the International Protection Appeals Tribunal) and the Legal Aid Board.

4 In October 2015 the Office of Government Procurement ('OGP') initiated a tender request for interpretation services over a range of public bodies. The tender request was divided into some eight different lots. The present proceedings concerns Lot 4, which is concerned with the State's immigration service and the Legal Aid Board.

5 The modern practice of public procurement often involves framework tendering in the first instance. The preferred bidders who are admitted to the framework agreement are then invited to participate in a mini-tender against each other. Word Perfect were included as among the tenderers admitted as preferred bidders in the Interpretation Services Framework Agreement in January 2016. Three suppliers were nominated to Lot 4 which included Word Perfect and another service provider, Forbidden City Ltd., which trades as Translation.ie.

6 The fact that the number of framework suppliers is confined to three entities is not without significance, because these companies are in competition with each other for each relevant contract and, accordingly, discovery of the terms of the tender documents (or even part of them) could be of considerable benefit to another tendering entity. All of this simply serves to highlight and underscore the importance of confidentiality in respect of these particular tender documents.

7 On the 27 April 2016, a supplemental request for tenders for a 12 month contract was issued by way of mini-competition to the three service providers concerned. The result of the mini-competition was published to the tenderers on the 5th August 2016, by way of a voluntary standstill letter. As it happens, Word Perfect's tender was unsuccessful and, as a result, in a pre-action letter dated the 12 August 2016, it indicated that it intended to bring a legal challenge to the contract award. This prompted the OGP to review the tender process. It concluded that the process was flawed and, accordingly, on 31 August 2016, the OGP cancelled the tender.

8 On the 7 December 2016, the OGP issued a new min-tender to the three service providers on the framework agreement with a closing date of 17 January 2017. The rules of the mini competition provided for a maximum word count in respect of each relevant submission. In the category entitled 'Management Plan', the maximum permitted word count was 2,000 words. The word court was exceeded by Word Perfect, although it was complied with by the other tenderers.

9 There then followed lengthy correspondence between the OGP and Word Perfect's solicitors which included demands by Word Perfect that it be permitted to submit a new edited version of its tender. This proposal was rejected by the OGP as representing an unlawful breach of the rules. The OGP proposed instead to consider Word Perfect's submission on a pro rata basis in respect of each of the categories concerned so that it would comply with the word count limit. The net effect of this was that Word Perfect was ultimately marked on the first 2,000 words of its tender.

10 On the 18 April 2017 a voluntary standstill letter was issued to each tenderer notifying them that Translation.ie was the preferred bidder. As it happens, Translation.ie had prevailed by a margin of some 15 marks out of 1,000 so that the outcome of the tender was a close one. Word Perfect were also sent a letter by the OGP on that day ('the regret letter') explaining the marks and giving reasons why Translation.ie won the competition.

11 In response, Word Perfect issued these...