Word Perfect Translation Services Ltd v Minister for Public Expenditure and Law Reform

• Jurisdiction: Ireland
• Judge: Mr. Justice Gerard Hogan
• Judgment Date: 07 June 2018
• Neutral Citation: [2018] IECA 156
• Court: Court of Appeal (Ireland)
• Docket Number: Record No. 2018/203
• Date: 07 June 2018

[2018] IECA 156

THE COURT OF APPEAL

Hogan J.

Peart J.

Irvine J.

Hogan J.

Record No. 2018/203

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. 3)

RESPONDENT

Public procurement – EU law – Manifest error – Appellant seeking to set aside the decision to award a contract to Translations.ie – Whether appellant had established manifest error

Facts: The appellant, Word Perfect Translation Services Ltd, appealed to the Court of Appeal from the decision of Barrett J to dismiss its claim in the substantive proceedings (Word Perfect Translation Services Ltd v Minister for Public Expenditure and Reform [2018] IEHC 238). The appellant confined itself to essentially four grounds of appeal: (i) manifest error in relation to the evaluation of the manner in which the tenderers would see that the interpreters retained their skills; (ii) manifest error in relation to the evaluation of one aspect of the quality assurance plan (in particular, whether Word Perfect's successful rival, Translations.ie, had supplied a narrative as required by the supplementary request for a tender (SRFT); (iii) whether the evaluators were consistent in their deliberations during the course of the evaluation process; and (iv) whether Word Perfect was entitled to reasons in respect of those areas where it had actually performed better than Translations.ie.

Held by Hogan J that: (i) Word Perfect had established manifest error so far as the quality assurance plan issue was concerned while Translation.ie did not supply a narrative in the manner required by the SRFT and the evaluators erred in marking the preferred bidder as if it had; (ii) the same was also true so far as the service delivery plan marks were concerned as neither party had submitted a tender which fully or completely complied with the requirement in the SRFT that they demonstrate measures to ensure that the interpreters retain their translation skills (both tenderers had merely demonstrated measures to show that they would encourage this on the part of their interpreters, as distinct from ensuring that this would be so); (iii) while the evaluation team must stand or fall by the ultimate award and the reasons for it, they were not required to explain the process by which they arrived at the final marks or the manner in which the adjudication evolved during the course of the evaluation meetings; (iv) in view of the language of Article 6 of the European Communities (Public Authorities' Contracts) (review Procedures) Regulations 2010, Word Perfect were only entitled to the reasons for the comparative advantage of the preferred bidder and not to the reasons for the comparative disadvantage of that bidder.

Hogan J held that, while he agreed with Barrett J in respect of the third and fourth grounds of appeal, he would nonetheless allow the appeal in respect of the two findings of manifest error.

Appeal allowed.

JUDGMENT of Mr. Justice Gerard Hogan delivered on the 7th day of June 2018

1 This is now the third judgment which this Court has been called upon to deliver at very short notice in these complex public procurement proceedings. The first judgment ( Word Perfect Translation Services Ltd. v. Minister for Public Expenditure and Reform (No. 1) [2018] IECA 35) concerned the question of whether damages are an adequate remedy in procurement cases. The second judgment ( Word Perfect Translation Services Ltd. v. Minister for Public Expenditure and Reform (No. 2) [2018] IECA 87) concerned aspects of the discovery process with particular reference to the discoverability of the tender submitted by the winning party). In this third judgment the Court is now hearing an appeal brought by the claimant, Word Perfect Translation Services Ltd. ('Word Perfect') from the decision of Barrett J. to dismiss its claim in the substantive proceedings: see Word Perfect Translation Services Limited v. Minister for Public Expenditure and Reform [2018] IEHC 238.

2 In his judgment Barrett J. dealt in a thorough and comprehensive way with a range of arguments before rejecting all of them. Indeed, Word Perfect has elected not to pursue many of these grounds which had been advanced and rejected in the High Court in this appeal. It has instead confined itself to essentially four grounds of appeal, two of which raise wider issues of principle in relation to the procurement process and the other two relate to particular aspects of the evaluation process. The four grounds are (i) manifest error in relation to the evaluation of the manner in which the tenderers would see that the interpreters retained their skills; (ii) manifest error in relation to the evaluation of one aspect of the quality assurance plan (and, in particular, whether Word Perfect's successful rival, Translations.ie had supplied a narrative as required by the supplementary request for a tender ('SRFT'); (iii) whether the evaluators were consistent in their deliberations during the course of the evaluation process and (iv) whether Word Perfect was entitled to reasons in respect of those areas where it had actually performed better than Translations.ie.

3 I propose presently to consider each of these grounds of appeal in turn, albeit not quite in that order. It is, however, first necessary to once again to rehearse the background to the proceedings.

The background to the proceedings

4 On 12 October 2015, the Office of Government Procurement ('OGP') published a request for tenders to establish a multi-supplier framework agreement for the provision of interpretation services (excluding Irish) ('the Framework Agreement'). The Framework Agreement included eight lots, but the present proceedings concern Lot 4 which was for the provision of interpretation services to the Immigration Service and the Legal Aid Board. Three suppliers were appointed to Lot 4 and were invited to tender against each other for this contract award. The suppliers included Word Perfect and Forbidden City Ltd., trading as Translation.ie.

5 In 2016 the OGP issued a revised SRFT for Lot 4 for the provision of services to the Immigration Service (including the Irish Naturalisation and Immigration Service, the Office of the Refugee Applications Commissioner, the Refugee Appeals Tribunal, the Reception and Integration Agency) and the Legal Aid Board. The SRFT originally set a closing date of 6 January 2017 for the receipt of tenders. As a result of clarifications sought by Word Perfect, certain amendments were ultimately made to the award criteria and to the chart setting out the scoring bands for the competition. The deadline for the receipt of tenders was extended to 17 January, 2017, but on 18 April 2017 the Minister for Public Expenditure and Reform notified Word Perfect of his decision to award the contract to Translation.ie.

6 There is no doubt but that the competition was keenly and closely contested. In the end Word Perfect lost out by some 15 marks out of a possible 1,000. The very closeness of the contest may indeed be said to be at the heart of the present proceedings because, as I have already noted, Word Perfect seek to establish that in two discreet respects the contracting authority awarded marks to its rival in such a manner as to constitute a manifest error on the part of the authority. Word Perfect accordingly submits that the tender award was flawed by reason of these manifest errors, such that the award should be quashed and the competition re-run.

7 It is unnecessary for present purposes to detail the complex procedural steps which led up to the substantive hearing in April 2018: these matters are fully set out in the two earlier judgments of this Court.

8 So far as the present appeal is concerned, the focus is on what is said to be two substantive evaluation errors, namely, first an error in the evaluation of the service delivery plan and, second, in respect of the quality assurance plan. Before examining these substantive issues, it may, however, be useful to set out the scoring methodology employed in the SRFT:

9 Under the heading 'Methodology for Calculating Scores when evaluating Award Criteria' identified in the SRFT the following explanatory table appears (at p. 17 of the tender document):

'Weighting / Meaning

80-100%: - Excellent response that fully meets or exceeds requirements, and provides comprehensive and convincing assurance that the Tenderer will deliver to an excellent standard.

60-79%: A very good response that demonstrates real understanding of the requirements and convincing assurance that the Tenderer will deliver to a very good or high standard.

40-59%: A satisfactory response which demonstrates a reasonable understanding of requirements and gives reasonable assurance of delivery to an adequate standard but does not provide sufficiently convincing assurance to award a higher mark.

20-39%: A response where reservations exist. Lacks full credibility/convincing detail, and does not provide confidence to the Contracting authority that the required services will be successfully delivered.

1-19%: A response where serious reservations exist. This may be because, for example, insufficient detail is provided, or the response has fundamental flaws, or is seriously inadequate or seriously lacks credibility with a high risk of non-delivery.

0%: No response or partial response only and poor evidence provided in support of it: failure to meet the requirements.'

The Quality Assurance Plan: The marks for the missing narrative

10 As I have already observed, the first ground of appeal is that the evaluators committed a manifest error by wrongly treating Translations.ie as having supplied a...