The Court of Appeal has ordered the Minister for Public Expenditure and Reform to disclose the quality assurance section of a rival bidder’s tender to Word Perfect Translation Services Limited, subject to restrictions on who may view it. The court dismissed the company’s request for a different section and deferred a third disclosure issue to the substantive hearing.
The judgment, delivered by Mr Justice Gerard Hogan on 28 March 2018, concerned an interlocutory appeal in Word Perfect’s challenge to a proposed contract award for translation services to State immigration services and the Legal Aid Board. The appeal addressed discovery of three parts of the successful tender submitted by Translation.ie: its service delivery plan, quality assurance plan and telephone resourcing proposal.
The court said confidentiality in tender documents is important, particularly where a small group of suppliers compete repeatedly. But tender documents are not immune from discovery. A claimant seeking a rival’s tender material must show that access is indispensable to the fair disposal of its challenge, rather than merely relevant or useful.
On the service delivery plan, Word Perfect argued that its own tender had been wrongly assessed on proposals to keep interpreters’ language skills current. The court dismissed this part of the appeal, saying the claim could proceed almost entirely by reference to Word Perfect’s own tender and did not require access to its rival’s response.
The court reached a different conclusion on quality assurance. Word Perfect had received full marks, while Translation.ie received 170 out of 200. The Office of Government Procurement had given no explanation for the rival’s score. The court said Word Perfect could not reasonably make out its challenge on that issue without seeing the relevant section, and ordered discovery of that part of the tender.
Access is limited in the first instance to named solicitors and counsel retained by Word Perfect. Any further application about access must be made to the High Court on notice to both the Minister and Translation.ie.
The court did not decide whether Translation.ie’s telephone resourcing proposal should be disclosed. It varied the High Court order and adjourned that issue to the substantive action, leaving the trial judge to decide afresh whether access is indispensable in light of the evidence at that hearing.
The substantive procurement challenge was listed in the High Court for 18 April 2018. The Court of Appeal’s ruling concerned discovery only; it did not determine the challenge to the contract award.