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

• Jurisdiction: Ireland
• Judge: Mr Justice Max Barrett
• Judgment Date: 04 May 2018
• Neutral Citation: [2018] IEHC 237
• Docket Number: 2017 No. 150 MCA
• Court: High Court
• Date: 04 May 2018

[2018] IEHC 237

THE HIGH COURT

Barrett J.

2017 No. 150 MCA

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

Applicant

– and –

THE MINISTER FOR PUBLIC EXPENDITURE AND REFORM

Respondent

European Union – The European Communities (Public Authorities' Contracts) (Review Procedures) Regulations 2010 – Qualitative award criteria – Discovery of documents

Facts: The applicant sought an order for setting aside the decision of the respondent for awarding public contract to successful tenderer and not the applicant. The applicant also sought certain ancillary reliefs. The applicant claimed that the respondent did not adopt fair procedures while awarding the public contract to the successful tenderer and that the respondent should have awarded better marks to the applicant.

Mr. Justice Max Barrett refused to grant the desired reliefs to the applicant. The Court held that the respondent had furnished the applicant reasons for awarding the contract to the successful tenderer. The Court opined that the applicant must have demonstrated a clear error on part of the contracting authority in the evaluation and scoring of a tender. The Court assessed the material that was presented before it and held that the respondent had correctly made the scoring while assessing the bids.

JUDGMENT of Mr Justice Max Barrett delivered on 4th May, 2018.

I

Background

1 On 12th 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"). The Framework included eight lots. Lot 4 was for the provision of interpretation services to the Immigration Service and the Legal Aid Board. The Framework agreement was established on 25th January, 2016. Three suppliers were appointed to Lot 4, including Word Perfect Translation Services Ltd and Forbidden City Ltd, trading as translation.ie.

2 Following the cancellation of a mini-competition on foot of a supplementary request for tenders to Framework members under Lot 4, the OGP issued a revised supplementary request for tender (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 (all of which comprise "the service users").

3 The SRFT originally set a closing date for the receipt of tenders of 6th January, 2017. Ultimately, resulting from clarifications sought by Word Perfect, amendments were made to the award criteria and to the chart setting out the scoring bands for the competition. As a consequence, the deadline for the receipt of tenders was extended to 17th January, 2017.

4 The qualitative award criteria focused on service delivery, contract management and management information reporting. The importance of the highest standards of service delivery for the service users was exemplified by the strong weighting for quality over cost (75/25 respectively).

5 By way of letter dated 18th April, 2017 (the "Reasons Letter"), the Minister for Public Expenditure and Reform notified Word Perfect of his decision to award the contract the subject-matter of the within proceedings to translation.ie. The notice also notified Word Perfect, on a voluntary basis, that the contract with translation.ie would not be concluded for 14 days from the day after the date of the notice. It is the decision aforesaid that is the subject-matter of the within proceedings.

6 The Minister issued an interlocutory motion on 28th June, 2017, seeking an order pursuant to Regulation 8A of the European Communities (Public Authorities' Contracts) (Review Procedures) Regulations 2010, as amended, permitting the contract in issue to be concluded.

7 The interlocutory motion was heard by the High Court on 4th and 5th December, 2017, and was determined in favour of the Minister; an order was then made lifting the automatic suspension. This decision of the High Court was appealed to the Court of Appeal, which appeal was heard on 2nd February, 2018. By judgment of 14th February, 2018, the Court of Appeal allowed the appeal but required as a condition of its decision an undertaking on behalf of Word Perfect that it would prosecute the within proceedings with urgency and without any further delay. Word Perfect gave this undertaking and a notably early hearing-date of 11th April, 2018, was assigned to the substantive proceedings.

8 Meanwhile, by way of letter dated 22nd December, 2017, Word Perfect raised a request for voluntary discovery seeking five categories of discovery. Following correspondence between the parties, agreement was reached to make discovery in respect of Categories 1, 2 and 5 in amended form. Word Perfect then issued a motion in respect of Categories 3 and 4. This was intended to be heard by the High Court on 28th February, 2018. However, the hearing did not go ahead due to the closure of the courts on account of snow. Instead, the discovery hearing took place on 13th March, 2018. A particular issue arose at this point as to the discoverability of the successful bidder's tender and confidentiality.

9 Judgment on the discovery motion issued on 16th March, 2018. Word Perfect then appealed that judgment to the Court of Appeal insofar as it related to the discoverability of the translation.ie tender. This appeal was heard on 28th March, 2018. In a judgment delivered on the same date, the Court of Appeal (i) declined the discoverability of that aspect of translation.ie's tender relating to the service delivery plan, (ii) ordered discovery of that part of the translation.ie's tender relating to quality assurance, and (iii) adjourned to the trial judge the issue of whether that part of translation.ie's tender relating to the telephoning resourcing award sub-criterion should be discovered.

10 The especial centrality of the pleadings to procurement cases has been confirmed in numerous cases, most notably in the decision of the Court of Appeal in its judgment of 28th March in the within proceedings ( Word Perfect Translation Services Ltd v. The Minister for Public Expenditure and Reform (No 2) [2018] IECA 87), para. 14. Perhaps unsurprisingly, given the remarkable speed with which the within proceedings have been progressed by the courts and counsel since the Court of Appeal delivered its judgment of 14th February, the submissions by counsel for Word Perfect have generally been considerably more constrained in focus than the amended statement of grounds that is before the court. As a result, there is a certain want of clarity as to which aspects of the amended statement of grounds the court is being asked to rule upon. Most helpfully, however, a speaking-note was handed up to the court at hearing by counsel for Word Perfect and that provides a useful point of reference by which to organise the within judgment.

Error in Evaluation of Service Delivery Plan?

(i) Paragraphs 38-43 of the Amended Statement of Grounds.

II

11 Paragraphs 38-43 of the Amended Statement of Grounds state as follows:

'38. The Respondent evaluated the Applicant's tender on the basis that it "did not include any proposal in respect of the methods employed to ensure that interpreters will retain their skills in the language and remain up to date with their practice and fluency to a sufficient standard to ensure effective delivery of the Service in all 4 language groups". This is manifestly incorrect. The Applicant's tender dealt with this specific point in the following parts of its tender:

** Page 5 (first paragraph)

** Page 25 (first sentence under the heading "(d) Maintenance and development of interpreters"); and,

** Page 38 (section (6), headed "Training").

39. The Respondent therefore evaluated the Applicant's tender while failing to consider relevant material contained within the tender. In the premises, the Respondent committed a manifest error of assessment and/or failed to take relevant considerations into account and/or breached the general principles of EU law including the principles of transparency, equal treatment and objectivity.

40. The Respondent awarded full marks to the Preferred Bidder under this criterion. The purported reason supplied for the characteristics and relative advantages of the Preferred Bidder's tender over that of the Applicant under this criterion was stated to be the Applicant's tender "did not include any proposal in respect of the methods employed to ensure that interpreters will retain their skills in the language and remain up to date with their practice and fluency to a sufficient standard to ensure effective delivery of the Service in all 4 language groups." In contrast, it was said that the Preferred Bidder's proposal "contained clear information on methods employed to ensure Interpreters retained their skills."

41. The Respondent awarded full marks to the Preferred Bidder not on any perceived substantive advantage in the Preferred Bidder's tender but on the purported basis that the response was explained in clearer terms. In the premises, the Respondent committed a manifest error of assessment and/or took irrelevant considerations into account and/or applied factors that were not included within the award criterion.

42. Further, the decision to award the Preferred Bidder full marks amounts to a breach of the general principles of European Union law, including the principles of transparency, equal treatment and objectivity. The Respondent has also failed to provide reasons and/or adequate reasons for its decision to award the...