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

• Jurisdiction: Ireland
• Judge: Mr. Justice Noonan
• Judgment Date: 11 January 2018
• Neutral Citation: [2018] IEHC 1
• Court: High Court
• Docket Number: [2017 No. 150 M.C.A.]
• Date: 11 January 2018

[2018] IEHC 1

THE HIGH COURT

Noonan J.

[2017 No. 150 M.C.A.]

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

Contract - Adequacy of damages - O 84 A of the Rules of the Superior Courts (as amended) - The European Communities (Public Authorities Contracts) (Review Procedure) Regulations 2010 - Interlocutory injunction - Human rights

Facts: The respondent filed the present application ('the Minister') for an order lifting the automatic suspension of the execution of a contract for services with a third party imposed by the relevant regulations in consequence of a legal challenge brought by the applicant (WP) to the award of that contract. The respondent contended that there were no serious issues to be tried. The applicant contended that there was no urgency demonstrated by the Minister in the present case and that damages would not be an adequate remedy as the applicant would suffer loss of reputation.

Mr. Justice Noonan granted the desired relief to the respondent. The Court held that the applicant had not discharged the onus that rested upon it for establishing that damages would not constitute an adequate remedy in the case. The Court observed that the damages could not be regarded as an adequate remedy in circumstances where an issue included matters such as the immigration status and human rights of the applicants for international protection. The Court stated that no reputational loss could occur to the applicant merely because he was an unsuccessful tenderer.

JUDGMENT of Mr. Justice Noonan delivered on the 11th day of January, 2018

1 These proceedings concern the award of a public contract for interpretation services in the State's immigration authorities and in the Legal Aid Board. This application is brought by the respondent ('the Minister') for an order lifting the automatic suspension of the execution of a contract for these services with a third party imposed by the relevant regulations in consequence of a legal challenge brought by the applicant ('WP') to the award of that contract.

Factual Background

2 In October 2015, the Office of Government Procurement ('the OGP') initiated a tender request for interpretation services over a range of public bodies divided into some eight different lots. Lot 4, which is in issue in these proceedings, concerns a number of entities comprised in the State's immigration service and also the Legal Aid Board. WP submitted a tender to be included on the proposed framework and on the 25th January, 2016, the Interpretation Services Framework Agreement was initiated. Three suppliers were nominated to Lot 4 which included WP and another service provider called Translation.ie. On the 27th April, 2016, a supplemental request for tenders ('SRFT') 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. WP'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 SRFT.

3 This prompted the OGP to review the SRFT and conclude that the process was flawed. Accordingly, on the 31st August, 2016, the OGP cancelled the SRFT.

4 On the 7th December, 2016, the OGP issued a new SRFT to the three service providers on the framework with a closing date of the 6th January, 2017, which was later extended to the 17th 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. This was exceeded by WP although complied with by the other tenderers.

5 This lead to lengthy correspondence between the OGP and WP's solicitors which included demands by WP 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. Instead the OGP proposed to consider WP'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.

6 On the 18th April, 2017, a voluntary standstill letter was issued to each tenderer notifying them that Translation.ie was the preferred bidder. In response, WP issued the within proceedings on the 8th May, 2017, challenging the proposed award of the contract. This was followed by the Minister, as the contracting party, issuing the motion currently before the court on the 28th June, 2017.

The Remedies Regulations

7 The Remedies Regulations comprise the European Communities (Public Authorities Contracts) (Review Procedure) Regulations 2010 ( S.I. 130 of 2010) as amended by the European Communities (Public Authorities Contracts) (Review Procedures) (Amendments) Regulations 2015 ( S.I. 192 of 2015).

8 The Regulations that are relevant to this application are as follows:-

8 - (1) An eligible person may apply to the Court'

(a) for interlocutory orders with the aim of correcting an alleged infringement or preventing further damage to the eligible person's interests, including measures to suspend or to ensure the suspension of the procedure for the award of the public contract concerned or the implementation of any decision taken by the contracting authority, or

(b) for review of the contracting authority's decision to award the contract to a particular tenderer or candidate.

(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.'

In addition to (2A) above, the 2015 Regulations added the following:-

'Exception to prohibition in Regulation 8(2)

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.'

9 Regulation 9, which deals with powers of the court, and is not amended by the 2015 Regulations, provides inter alia:-

'9...

(4) When considering whether to make an interim or interlocutory order, the Court may take into account the probable consequences of interim measures for all interests likely to be harmed, as well as the public interest, and may decide not to make such an order when its negative consequences could exceed its benefits...

(6) The Court may award damages as compensation for loss resulting from a decision that is an infringement of the law of the European Communities or the European Union, or of a law of the State transposing such law.'

The Underlying Proceedings

10 In its grounding statement, WP seeks to set aside the award of the contract to Translation.ie on a substantial number of grounds which allege that the OGP's decision to award the contract to Translation.ie was unlawful and ultra vires. Without seeking to exhaustively set out these grounds, it seems to me that for the purposes of this judgment, they can broadly be summarised as grounds relating 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 seem to centre on the involvement of an OGP official, Mr. Bill Byrne.

11 Mr. Byrne was involved in the first SRFT, which was cancelled, and WP's complaint appears to revolve around a concern that he may have been in some way involved in the second SRFT which WP claims would have been improper because of views Mr. Byrne may have formed as a result of the dispute surrounding the first SRFT. The Minister denies that Mr. Byrne was in any way involved in the second SRFT.

The Evidence

12 WP has been in business in Ireland since 2001 and has for a number of years been providing interpretation services to the Irish immigration service. It currently does so on an ad hoc basis. It is evident that for some considerable period of time, there have been issues with WP's performance. Although these issues are canvassed at great length in the parties' respective affidavits, they can generally be characterised as those relating to quality of interpretation, late arrival at appointments and a failure to produce ID badges which are said by the Minister to be essential to prove that the interpreters...