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

• Jurisdiction: Ireland
• Judge: Mr. Justice Gerard Hogan
• Judgment Date: 14 February 2018
• Neutral Citation: [2018] IECA 35
• Court: Court of Appeal (Ireland)
• Docket Number: [C.A. No. 20 of 2018],Neutral Citation Number: [2018] IECA 35
• Date: 14 February 2018

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 -

MINISTER FOR PUBLIC EXPENDITURE AND REFORM

RESPONDENT

[2018] IECA 35

Hogan J.

Hogan J.

Hedigan J.

Gilligan J.

Neutral Citation Number: [2018] IECA 35

Record No. 2018/20

THE COURT OF APPEAL

Automatic suspension – Execution of a contract – Interpretation services – Respondent seeking an order lifting the automatic suspension of the execution of a contract for interpretation services with a third party – Whether the onus of proof rested upon the appellant to justify the continuation of the suspension

Facts: The respondent, the Minister for Public Expenditure and Reform, applied to the High Court for an order pursuant to Article 8A of the European Communities (Public Authorities' Contracts Review Procedures) Regulations 2010 lifting the automatic suspension of the execution of a contract for interpretation services with a third party imposed by the 2010 Regulations in consequence of a legal challenge brought by the appellant, Word Perfect Translation Services Ltd, to the award of that contract. The appellant sought to set aside the award of the contract on grounds which alleged that the decision of the Office of Government Procurement to award the contract to Translation.ie was unlawful and ultra vires. The grounds related to (a) a failure to give adequate reasons for the decision, (b) manifest error in a number of areas and (c) alleged concerns about the integrity and transparency of the process which seemed to centre on the involvement of an Office of Government Procurement official, Mr Byrne. The High Court (Noonan J) granted the Minister the order sought. The appellant appealed to the Court of Appeal against the making of that order.

Held by Hogan J that he would have granted Word Perfect an interlocutory injunction on the hypothetical basis contemplated by Article 8A(2)(a) of the 2010 Regulations. It followed in turn that he would allow the appeal and refuse to grant the Minister an order lifting the suspensive effect of the proceedings and permitting him to conclude the contract with the successful tender pursuant to Article 8A(1) of the 2010 Regulations.

Hogan J held that he would require as a condition of this decision an undertaking on behalf of the appellant that it would prosecute these proceedings with urgency and without any further delay.

Appeal allowed.

JUDGMENT of Mr. Justice Gerard Hogan delivered on the 14th day of February 2018

1 As its name conveys, the plaintiff company, Word Perfect Translation Services Ltd. ('Word Perfect'), is the supplier of specialist translation services to a range of State bodies. These public procurement proceedings which have been brought by the plaintiff 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 to another company known as Translation.ie.

2 The present appeal arises out of an application made to the High Court by the Minister for an order pursuant to Article 8A of the European Communities (Public Authorities' Contracts Review Procedures) Regulations 2010 (S.I. No. 130 of 2010)('the 2010 Regulations') lifting the automatic stay provided by the Regulations on the execution of the contract award by the Minister pending the outcome of this challenge to that award. In the High Court, Noonan J. granted the Minister the order sought: see Word Perfect Translation Services Ltd. v. Minister for Public Enterprise [2018] IEHC 1. The claimant, Word Perfect, has now appealed to this Court against the making of this order.

3 Before considering the legal issues which arise in this appeal, it is first necessary to consider the background to the proceedings.

The background to the present proceeding

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 appeal 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 Translation.ie.

6 On the 27th 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 12th 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 the 31st August 2016, the OGP cancelled the tender.

7 On the 7th December 2016, the OGP issued a new mini-tender to the three service providers on the framework agreement with a closing date of the 17th January, 2017. On the 18th April 2017 a voluntary standstill letter was issued by OGP to each tenderer notifying them that Translation.ie was the preferred bidder. In response, Word Perfect issued these proceedings in the High Court on the 8th May 2017 in which it challenged the proposed award of the contract. On the 28th June 2017 the Minister then issued a motion pursuant to Article 8A of the 2010 Regulations (as amended) seeking to have the automatic stay on the execution of the contract lifted. As I have already noted, the Minister succeeded in this application in the High Court and Word Perfect has now appealed to this Court.

The 2010 Regulations

8 It is next necessary to consider the relevant provisions of the 2010 Regulations, as amended by the European Communities (Public Authorities' Contracts) (Review Procedures) (Amendments) Regulations 2015 (S.I. 192 of 2015)('the 2015 Regulations'). Article 8(1) of the 2010 Regulations provides that a disappointed tenderer may apply to the High Court for measures to suspend the contract award. As originally promulgated, Article 8(2) provided that in the event such an application were made, the contracting authority could not conclude the contract until the proceedings were heard and disposed of or 'the Court gives leave to lift any suspension of a procedure.'

9 Article 8(2) was, however, amended in 2015 in circumstances I shall presently describe. As so amended, Article 8(2) now provides:

'(2) If a person applies to the Court under paragraph (1), the contracting authority shall not conclude the contract until:

(a) the Court has determined the matter, or

(b) the Court gives leave to lift any suspension of a procedure, or

(c) the proceedings are discontinued or otherwise disposed of,

but this is subject to paragraph (2A).

(2A) Notwithstanding that:

(a) an application has been made under paragraph (1), and

(b) the matter concerned has not been determined by the Court,

the contracting authority may conclude the contract if, on application to the Court under Regulation 8A, the Court so orders.'

10 A new Article 8A was also added by the 2015 Regulations:

'8A.(1) On application made to it under this Regulation by the contracting authority, the Court may, notwithstanding the matters referred to in Regulation 8(2A)(a) and (b), make an order permitting the contracting authority to conclude the contract referred to in Regulation 8(1).

(2) When deciding whether to make an order under this Regulation:

(a) the Court shall consider whether, if Regulation 8(2)(a) were not applicable, it would be appropriate to grant an injunction restraining the contracting authority from entering into the contract, and

(b) only if the Court considers that it would not be appropriate to grant such an injunction may it make an order under this Regulation.

(3) The Court may, if it considers just to do so, specify in the order it makes under this Regulation that the order shall operate subject to there being satisfied one, or more than one, condition that it determines to be appropriate and specifies in the order.'

11 In passing, a word of explanation regarding the provenance of the amendments to Article 8(2) and the inserted of a new Article 8A by the amending 2015 Regulations may be in order. As we shall presently see, the scheme envisaged by the Remedies Directive is that the launch of proceedings within the appropriate time limit would have automatic suspensive effect. In OCS One Complete Solutions Ltd. v. Dublin Airport Authority [2014] IESC 51 the Supreme Court held that the court had no jurisdiction to lift the suspensive effect of the automatic stay provided for in Article 8(2) the 2010 Regulations once an application was made by the disappointed claimant for an order under Article 8(1).

12 In the wake of that decision, a new version of Article 8(2) was then inserted by the 2015 Regulations. These Regulations also inserted a new Article 8A. As Costello J. explained in Powerteam Electrical Services Ltd. v. ESB [2016] IEHC 87, the effect of the new Article 8A is to require the Court to proceed on the hypothetical basis that an interlocutory injunction has been applied for and in the event that...