[2018] IEHC 158
THE HIGH COURT
Record No. 2017/150 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)
WORD PERFECT TRANSLATION SERVICES LIMITED
Applicant
– AND –
THE MINISTER FOR PUBLIC EXPENDITURE AND REFORM
Respondent
JUDGMENT of Mr Justice Max Barrett delivered on 16th March, 2018.1. On or about 12th October, 2015, a ‘Request for Tenders [RFT] to establish a Multi-Supplier Framework Agreement for the Provision of Interpretation Services (excluding Irish)’ was issued by the Minister for Public Expenditure and Reform on behalf of a number of entities. Word Perfect submitted a tender in response to the said Request and, by letter dated 23rd December, 2015, it was notified by the Office of Government Procurement (‘OGP’) that it had been successful in its application and that it had been awarded a place on the Framework, along with two other entities, including translation.ie.
2. A supplementary request for tenders (‘SRFT’) in respect of what is known as the Lot 4 services (translation services for a particular collection of agencies and bodies) followed on 7th December, 2016, an earlier mini-competition for the same lot having been cancelled by the Minister. The SRFT referred at numerous junctures back to what had been stated in, or stipulated by, the original RFT. It stipulated a closing-date of 6th January, 2017, for the return of tenders.
3. Prior to the latter closing date, the SRFT was the subject of certain amendments. Separately, it is claimed that a binding commitment was given to Word Perfect, by or on behalf of the Minister, to the effect that having regard to the cancellation of the prior SRFT, a new evaluation panel would be convened for the purpose of evaluating mini-tenders submitted in response to the re-issued SRFT of 7th December, 2016. Word Perfect submitted its tender by the revised deadline of 17th January, 2017.
4. Word Perfect was notified by letter dated 18th April, 2017, from the OGP that its tender for the Lot 4 services had been unsuccessful. The letter stated that the tender received from translation.ie had been identified as the most economically advantageous tender and was therefore the preferred bidder.
5. In the within proceedings, Word Perfect claims that the Minister failed to comply with the provisions of (i) the European Union (Award of Public Authority Contracts) Regulations 2016, (ii) Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC (O.J. L94, 28.03.2014, 65), (iii) Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts (O.J. L395, 30.12.1989, 33), as amended, (iv) the European Communities (Public Authorities’ Contracts) (Review Procedures) (Amendment) Regulations 2015, as amended, and (v) the general principles of European Union law under and derived from, inter alia, the Treaty on the Functioning of the European Union (‘TFEU’), including but not limited to the principles of transparency, equal treatment, non-discrimination, proportionality, competition, objectivity, good administration and effective judicial protection.
6. In the course of the within proceedings, a notice of motion for discovery issued from the applicant seeking five categories of discovery. Category 1 [ “All documents, howsoever described and in whatever format available, referring to, evidencing, discussing, recording and/or relating to the evaluation of tenders submitted in respect of the tender process in dispute in these proceedings, including but not limited to: the final evaluation report; any and all preceding drafts of the evaluation report; minutes and/or attendance notes taken during the evaluation process; emails, notes, memoranda, diary entries; calculations relating to the tender evaluation; internal deliberations; and any instructions, advice or communications issued to or from the Respondent’s evaluation team prior to and/or during the evaluation process relating to the award of the Contract.” ] and Category 2 [ “All documents referred to and/or considered by the Respondent in the course of its review and/or assessment and/or evaluation of the tenders submitted in the tender process in dispute in these proceedings and all documents referring to the translation.ie tender, including but not limited to, all documents submitted by translation.ie (or its servants or agents) including its tender submission and all communications between the Respondent and translation.ie (or its servants or agents) between the submission of the tender and the announcement of translation.ie as the Preferred Bidder, including any clarifications issued after tenders had been submitted.”] have been agreed, save as regards the provision of the translation.ie tender document. Category 3 [ “All documents evidencing and/or relating to the opening and/or accessing and/or downloading and/or review of tenders, including documents which evidence any communications relaying to any of the tenders and/or the tender process”] and Category 4 [ “All documents relating to the role of chairperson of the evaluation panel.”] are not agreed. Category 5 [ “The report prepared by the Respondent pursuant to Article 43 of Directive 2004/18 in relation to the tender the subject of the proceedings.”] appears in the notice of motion but appears to have been agreed even before the notice of motion issued.
7. An immediate difficulty that arises with Category 3 is its sweeping breadth. It is lacking in any real focus and would extend to documentation that is patently beyond what is relevant and necessary, even to tenders other than those of Word Perfect and translation.ie (discovery of which other tender documentation is not being sought (which rather buttresses the court in its conclusion that Category 3 is too widely drawn)).
II
Some Applicable Law
(i) Discovery done by reference to Pleadings.
8. The question of whether documents are relevant and necessary falls to be determined by reference to the pleadings. (BAM PPP PGGM Infrastructure Cooperatie UA v. National Treasury Management Agency [2015] IECA 246, para.37). The judgment of the Court of Appeal in that case also offers the following useful summary of relevant principle, at para. 29:
“1. The primary test is whether the documents are relevant to the issues between the parties. Once that is established it will follow in most cases that their discovery is necessary for the fair disposal of those issues.
2. Relevance is determined by reference to the pleadings….
3. There is nothing in the Peruvian Guano test which is intended to qualify the principle that documents sought on discovery must be relevant, directly or indirectly, to the matter in issue between the parties on the proceedings.
4. An application for discovery must show it is reasonable for the court to suppose that the documents contain relevant information.
5. An applicant is not entitled to discovery based on speculation.
6. In certain circumstances a too wide ranging order for discovery may be an obstacle to the fair disposal of proceedings rather than the converse.
7. As Fennelly J. pointed out in Ryanair plc v. Aer Rianta cpt [2003] 4 IR 264, the crucial question is whether discovery is necessary for ‘disposing fairly of the cause or matter.’
8. There must be some proportionality between the extent or volume of the documents to be discovered and the degree to which the documents are likely to advance the case of the applicant or damage the case of his or her opponent in addition to ensuring that no party is taken by surprise by the production of documents at trial.
9. Discovery could become oppressive and the court should not allow it to be used as a tactic in war between parties.”
(ii) Some Applicable European Union Law.
9. The court’s attention has been drawn to the observation of the Court of Justice in Unibet (London) Ltd v. Justitiekanslern (Case C-432/05), para. 44 that “It is for the national courts to interpret the procedural rules governing actions brought before them…in such a way as to enable those rules, wherever possible, to be implemented in such a manner as to contribute to the attainment of the objective…of ensuring effective judicial protection of an individual’s rights under Community law”. This case was applied by the High Court in Gaswise Ltd v. Dublin City Council [2014] IEHC 56/3 IR 1, Finlay Geoghegan J. noting, at para.74, that “[T]he court must interpret the powers given [to] it under the Remedies Regulations and apply them in a manner which ensures effective judicial protection of European Union rights: Unibet”. All that is accepted, but to the extent that it is contended that there are special rules for discovery in the context of public procurement, that was rejected by the Court of Appeal in BAM, the Court holding at para.31-32, that:
“31. There are not special rules for discovery in different kinds of legal action such as judicial review and public procurement cases. It is that the nature of the dispute makes it more or less appropriate for discovery to be ordered. There are analogies between judicial review and public procurement that are reflected in some of the authorities…..The standard is not the same as unreasonableness in the sense of O’Keeffe v. An Bord Pleanála for judicial review. The relevant principles include equality, transparency and objectivity. In so far as judicial review is relevant by way of analogy, Geoghegan J. in the Supreme Court in Carlow Kilkenny Radio Ltd v Broadcasting Commission [2003] 3 IR 528 noted that:
‘[I]t is trite law that judicial review is not concerned with the correctness of a decision but rather with the way that the decision is reached. It follows that the categories of documents which a court would consider were necessary to be discovered will be much more confined than if the litigation related to the merits of the case’.
32. Finlay Geoghegan J, refused discovery in KA v. Minister for Justice [2003] 2 I.R. 93 saying that it is:
‘In the nature of judicial review that the necessity for discovery will be more difficult to establish than in plenary proceedings. This follows from the fact that in judicial review what is at issue is the legality of the decision challenged. In many instances the facts are not in dispute’ (at 100)”.
10. Thus, per the Court of Appeal, and its conclusions are binding on this Court: “There are not special rules for discovery in different kinds of legal action such as…public procurement cases”; and “There are analogies between judicial review and public procurement”. So notwithstanding that the applicant in the within proceedings has urged the centrality of transparency to the public procurement process as a critical feature to be brought to bear in the within discovery application, the decision of the Court of Appeal in BAM has the effect that the usual principles of discovery (relevance, necessity, proportionality) apply and the more confined discovery akin to that available in judicial review proceedings is favoured as an analogy. The Court of Appeal does not expressly address the issue of transparency in its judgment in BAM but it must be, it can only be, that it saw its conclusions in that case, which was a public procurement case, as consistent with the notion of transparency as a cornerstone of public procurement law. To the extent that the applicant in the within proceedings has sought to rely upon the decision of the High Court in Somague Engenharia SA v. Transport Infrastructure Ireland [2015] IEHC 723 as driving the court to an alternative approach to matters, the rules of precedent are clear: the decision of the Court of Appeal prevails and binds.
III
Statement of Grounds
(i) Statement of Grounds.
11. Bearing in mind the discovery sought in Categories 3 and 4, the court turns to the grounds identified in the Statement of Grounds upon which relief is sought (other than the Management Resources/Management Structures/Management Escalation Process grounds which it was agreed by counsel for Word Perfect at hearing did not fall to be addressed in the context of the within discovery application).
(a) Failure to provide reasons: General.
(Paras. 35–37 of the Statement of Grounds)
12. This aspect of the pleadings does not involve a free-standing complaint. Para.37 expressly refers to what follows as the particulars.
(b) Service Delivery Plan.
(Paras. 38–43 of the Statement of Grounds)
13. The complaint arising in this context is that the Minister erred in not identifying the applicants’ skills retention proposal and giving marks for it. There is no dispute about what translation.ie’s tender said.
14. Leaving aside the translation.ie tender document: (1) it seems to the court that the documentation relevant to the complaint just identified will be discovered under Category 1 and/or 2; (2) specifically as regards Category 3, it is in any event so widely drafted that, to satisfy the demands of relevance, necessity and proportionality, the court would need to narrow it in such a way that again it does not see that anything further would fall to be discovered that will not issue under Category (1) and/or Category (2).
(c) Quality Assurance Plan Award Sub-Criterion.
(Paras. 67-68 of the Statement of Grounds)
15. The complaint here is that while the applicant was awarded full marks for the Quality Assurance dimension, there has been no explanation as to why the preferred bidder obtained lower marks. An explanation has been offered in the decision letter of 18th April, 2017. So in truth the complaint arising is that the decision letter of 18th April is deficient.
16. Leaving aside the translation.ie tender document: (1) it seems to the court that the documentation relevant to the issues just identified will be discovered under Category 1 and/or 2; (2) specifically as regards Category 3, it is in any event so widely drafted that, to satisfy the demands of relevance, necessity and proportionality, the court would need to narrow it in such a way that again it does not see that anything further would fall to be discovered that will not issue under Category (1) and/or Category (2).
(d) The Telephoning Resourcing Award Sub-Criterion.
(Paras. 69–75 of the Statement of Grounds)
17. The complaint here concerns the criteria and marking scheme. The Minister maintains that he applied the award criteria of the SFRT. If objection is now being made to the criteria and marking scheme, it is claimed that that objection is out of time.
18. Leaving aside the translation.ie tender document: (1) it seems to the court that the documentation relevant to the complaint just identified will be discovered under Category 1 and/or 2; (2) specifically as regards Category 3, it is in any event so widely drafted that, to satisfy the demands of relevance, necessity and proportionality, the court would need to narrow it in such a way that again it does not see that anything further would fall to be discovered that will not issue under Category (1) and/or Category (2).
(e) Non-Transparency regarding the Evaluation Committee
and/or discrimination and/or other inconsistencies, illegalities or errors.
(Paras. 76–80 of the Statement of Grounds)
19. Two particular complaints are made in this regard: (1) that the Minister appointed a chairperson of the evaluation panel who had no role in the evaluation and whose identity has not been disclosed; and (2) that the Minister permitted a Mr Byrne of the OGP and others to access Word Perfect’s tender. As to (1), it is not disputed by the Minister that he appointed a chairperson of the evaluation panel who had no role in the evaluation. So there is no fact in dispute. As to (2), there is likewise no dispute of fact that the OGP officials identified by the e-tenders system as having accessed Word Perfect’s tender documentation (including Mr Byrne) did so. It follows that no discovery falls to be ordered in this regard.
IV
The translation.ie Tender
20. The court does not see, when it has regard to the pleadings, that disclosure of the winning (translation.ie) tender is relevant. That want of relevance is, in and of itself, fatal to the application for discovery. However, a further concern that presents itself in this regard is the issue of commercial confidentiality. In an affidavit sworn in the context of the within discovery application, Ms Looney, a solicitor for the Minister avers, inter alia, as follows:
“[T]he Procurement Code requires the Respondent to respect the commercial confidentiality of tenderers, not only in the interest of tenderers, but also in the public interest of ensuring a fair competitive process. That is particularly important in circumstances where this is only a one year long contract and the competitive process will have to be rerun in the short term. The Respondent [the Minister] believes that the disclosure to the Applicant [Word Perfect] of the substantive content of the successful tender will damage the competitive process in the future and will harm the competitive position of translation.ie. It will give the Applicant an insight into the commercial position with a competitor that it would never normally obtain.”
21. At the hearing of the within application, two directors of translation.ie appeared in court and submitted that the entirety of their tender is commercially confidential. (Notably, Word Perfect has itself asserted that all of its own tender is commercially confidential). Counsel for Word Perfect contended that when it comes to the workings of an interpretation/translation enterprise, one is not, for example, dealing with highly secret material. However, the court does not accept that this means that the detail of the workings of such an enterprise is not commercially sensitive. Indeed, it could reasonably be contended that when it comes to the operation of what might be described as – and the court means no disrespect in this regard – more mundane enterprises, the ability to shave a few euro of cost here or earn a few euro extra of profit there, in what is likely a fairly generic industry model, is highly commercially sensitive.
22. It was submitted by counsel for Word Perfect that the competitive process, based on the past frequency of such competitive processes may not fall to be rerun as soon as Ms Looney avers. However, the evidence of Ms Looney is that “the competitive process will have to be rerun in the short term” and that is the evidence before the court. A consequence of that evidence is that the information contained in the translation.ie tender document will likely not be ‘stale’ by the time a fresh competitive process falls to be run, yielding a heightened risk for translation.ie when it comes to commercial confidentiality.
23. Having, at the parties’ request, considered the substance of the translation.ie tender documentation and the very detailed account which that tender document contains of the workings of translation.ie, the court does not see how, if it were to order discovery of same (and for the various reasons identified in the within judgment, it will not) there would be anything left of utility to Word Perfect after the tender document had been redacted for reasons of commercial confidentiality.
24. For the reasons identified previously above, the court respectfully declines to order discovery of (1) the translation.ie tender document, and (2) the documentation sought under each of Category 3 and 4.
