The Court of Appeal has set aside a High Court order requiring the Minister for Public Expenditure and Reform to disclose documents in a judicial review challenge to a translation services contract for An Garda Síochána.
Wordperfect Translation Services Limited, an unsuccessful tenderer, is challenging the Minister’s decision, communicated on 12 October 2018, to award the contract to another participant in the tender competition. The appeal concerned discovery only; the Court of Appeal did not decide the substantive challenge to the award.
The High Court had ordered discovery across nine categories, including tender evaluations, the successful tenderer’s bid and related communications, evaluations of both bids, and documents concerning the absence of a standstill period. The Minister argued that the order was overly broad and that the documents were not necessary to resolve the pleaded issues. Wordperfect maintained that it needed the material to test claims including that undisclosed award criteria had been applied and that the tenders had been treated unequally.
The Court of Appeal considered the categories in groups. It found that the allegations about undisclosed criteria and the evaluation of Wordperfect’s bid could be argued using the tender requirements and feedback already available. In the court’s view, those issues were matters of interpretation and did not require the requested evaluation records. It also found no need for discovery of all evaluation material concerning a quality assurance criterion where Wordperfect’s quarterly presentation differed from the monthly format specified in the tender request.
The court refused discovery of the successful tender and related evaluation records, concluding that the general claims of unequal treatment, unexplained scores and an abnormally low tender lacked enough particularity to show discovery was necessary. It also refused the broad request for documents about the missing standstill period. Wordperfect could give evidence about its claimed expectation that such a period would apply, while the Minister disputed the legal basis and whether any representation had been made.
The Court of Appeal noted that the Minister had previously offered limited discovery from parts of the final evaluation report relating to Wordperfect under some categories. That offer had been declined, and the court said the parties could address whether it remained available.
The court allowed the appeal and vacated the High Court’s order of 14 March 2019. It made no ruling in this appeal on whether the contract award itself was lawful.