Procurement Law Case Note - Discovery In Irish Public Procurement Cases: Word Perfect Translation Services Limited V The Minister For Public Expenditure And Reform

• Published date: 29 October 2020
• Subject Matter: Government, Public Sector, Litigation, Mediation & Arbitration, Constitutional & Administrative Law, Trials & Appeals & Compensation
• Law Firm: Eversheds Sutherland
• Author: Mr Peter Curran

Background

The Irish Court of Appeal has delivered a significant judgment in legal proceedings arising from a challenge by Word Perfect Translation Services Limited ("Word Perfect") to an order for discovery made by the High Court compelling the appellant, the Minister for Public Expenditure and Reform (the "Minister") to discover nine categories of documents¹.

The decision arises from legal proceedings brought by Word Perfect, an unsuccessful tenderer, challenging the Minister's decision to award a contract for the provision of translation services to another economic operator following a mini-competition under a multi-party framework agreement.

The key issue which the Court of Appeal had to address was whether the nine categories of discovery sought by Word Perfect and granted by the High Court were relevant and necessary to enable that party to fairly and properly challenge the Minister's award decision.

In a judgment which has potentially significant implications for economic operators seeking to challenge certain procurement decisions in Ireland, the Court of Appeal overturned the High Court decision in all material respects, concluding that all nine categories of discovery ordered by the High Court were not in fact relevant and necessary for the fair and proper determination of the issues in the proceedings.

Facts of the case

Word Perfect initiated legal proceedings challenging the outcome of a mini-competition for a contract for the provision of translation services. In the course of those proceedings, Word Perfect sought discovery of nine categories of documents which it argued were relevant and necessary to enable it to fairly and properly challenge the Minister's award decision. The documents sought related to the evaluation of specific award criteria, the successful tenderer's tender and associated clarifications, the evaluation of the successful tender, the evaluation of Word Perfect's tender and the failure to observe a standstill period.

The Minister agreed to make limited discovery in respect of four of the nine categories of documents sought, but this offer was refused. Word Perfect subsequently sought an order for discovery in the High Court (Simons J) which determined that all documents sought by Word Perfect were both relevant and necessary. The Court held that the grounds of the challenge were not speculative, but rather derived from what it considered to be "the very limited information which [the Minister] has, to date, made available to Word Perfect". The Minister appealed this decision.

Decision of the Court of Appeal

The Court of Appeal recited with approval the key principles that guide the Irish Courts in relation to discovery in public procurement cases, as summarised by the Court in BAM PPP PGGM Infrastructure Cooperatie UA v....