Word Wars: This Year's 'Word Perfect' Public Procurement Case Trilogy

This is the third seminal judgment this year on the public procurement procedure used to evaluate tenders to provide the Immigration Service and Legal Aid Board with interpretation services (Word Perfect Translation Services Limited v The Minister for Public Expenditure and Reform (No.3) [2018] IECA 156). In this case, the Court of Appeal found two manifest errors had been made by the Office of Government Procurement and set aside the decision to award interpretation services to Translations.ie.

BACKGROUND

On 12 October 2015, the Office of Government Procurement published a request for tenders to establish a Framework Agreement for the Provision of Interpretative Services. The Framework Agreement included eight lots; this series of disputes concerns the fourth lot for tender: Lot 4- the provision of interpretation services to the Immigration Service and Legal Aid Board. To date Lot 4 has generated three important judgments.

1. Damages: Word Perfec t (No. 1) [2018] IECA 35

   The first judgment (Word Perfect Translation Services Ltd. v. Minister for Public Expenditure and Reform (No. 1) [2018] IECA 35) concerned damages, with the Court of Appeal finding that:

   Member States are required by EU law to provide remedies by reference to the Francovichcriteria. (i.e. damages may be awarded where claimants can demonstrate an objective breach of EU law which is either "grave or manifest" or "inexcusable" Okunade v. Minister for Justice [2002] IESC 49, [2003] 3 IR 153). The criteria for damages is a matter to be determined and estimated by national law. Hogan J. stressed: the high bar to a claimant recovering damages pursuant to the Francovich criteria should inform any assessment of whether damages can be an adequate remedy (para. 59). 2. Three Requirements to "Discover" a Rival's Tender Documents - Word Perfect (No. 2) [2018] IECA 87

   The second judgment (Word Perfect Translation Services Limited v The Minister for Public Expenditure and Reform (No.2) [2018] IECA 87 provided a test for discovery applications in public procurement challenges. The Court of Appeal determined that to obtain discovery of a rival's tender documentation, an applicant was required to establish that the documents in question were:

   Relevant to the arguments outlined in the pleadings in the main dispute; (BAM PPP PGGM Infrastructure Cooperative BV v. NTMA [2015] IECA 246) Necessary to these arguments; and Indispensable for the fair disposal of the procurement challenge. Finally...