The Court of Appeal set aside the decision to award a public contract for interpretation services to Translation.ie after finding manifest errors in two parts of the tender evaluation. The court allowed an appeal by Word Perfect Translation Services Ltd, but rejected its challenges to the evaluators’ changing scores and to the reasons provided for the winning bid.
The dispute concerned Lot 4 of a framework agreement for interpretation services to the Immigration Service and the Legal Aid Board. The Minister for Public Expenditure and Reform awarded the contract to Translation.ie on 18 April 2017. Word Perfect lost by about 15 points out of 1,000 and argued that errors in the evaluation warranted quashing the award and rerunning the competition.
In a judgment delivered on 7 June 2018, Mr Justice Gerard Hogan said the tender required management information reports to include both visual displays and a written narrative summary. Translation.ie supplied charts and other data but no narrative summary as required. It nevertheless received 170 marks, or 85 per cent, in that category, within the top scoring band. The court held that treating the tender as if it fully met the requirement amounted to manifest error.
The court also found an error in the scoring of the service delivery plan. The tender required bidders to show how they would ensure interpreters retained their language skills and fluency. Both Word Perfect and Translation.ie described steps to encourage skill retention, rather than measures that ensured it. The court did not decide that Translation.ie could not score higher than Word Perfect; it held that the winning bidder could not properly receive a perfect score when its tender did not fully comply with the requirement.
Word Perfect’s other two appeal grounds failed. The court agreed with the High Court that evaluators did not have to explain how provisional scores changed during evaluation meetings. It also held that the applicable rules entitled Word Perfect to reasons for the successful tender’s comparative advantages, but did not require further reasons explaining the winning bidder’s marks in areas where Word Perfect scored higher.
The Court of Appeal allowed the appeal on the two findings of manifest error and ordered the decision to award the contract to Translation.ie set aside under Article 9 of the 2010 Regulations. The judgment did not itself award the contract to Word Perfect or direct that a particular tenderer be selected.