The Court of Appeal has kept in place a suspension preventing the Minister for Public Expenditure and Reform from entering a new framework agreement for Irish language translation services while Word Perfect Translation Services’ challenge proceeds to trial.
In a judgment delivered on 12 November 2021, Mr Justice David Barniville, with whom Justices Edwards and Faherty agreed, allowed the company’s appeal against a High Court order that had lifted the suspension. The appeal court refused the Minister’s application to lift it. The suspension is to remain until the trial concludes; whether it continues between the hearing and the High Court’s judgment is for the trial judge to decide.
Word Perfect challenges three features of the tender rules: allocating some Lot 1 contracts worth less than €100,000 by rotation, minimum prices across all three lots, and a €40,000 minimum annual turnover requirement for each lot. The High Court found the company had raised a fair question to be tried on each point. Those underlying challenges were not decided in this appeal.
The appeal court said damages might be available if Word Perfect succeeds at trial, but the many variables involved in estimating what a lawful competition would have produced made damages difficult to assess. It concluded that leaving the company to a damages claim risked injustice. The court also agreed with the High Court that damages would not adequately address harm to public interests if the suspension remained in place.
The Minister argued that the framework was needed to help public bodies meet Irish-language translation obligations and avoid the delay and expense of separate procurement exercises. The court accepted the importance of those interests, including the anticipated increase in demand for translations of EU legal material. But it found the evidence did not establish an overriding need to implement the framework before the trial, which was listed for 11 January 2022.
The judgment noted that the previous framework had been used for about 60 competitions over four years, and that many contracts appeared to remain in place. Public bodies could also procure translation services independently, though centralised procurement could be more efficient. Weighing those considerations against the risk of injustice to Word Perfect, the court held that the automatic suspension should remain until the trial concludes.