The Supreme Court has directed limited disclosure of evaluation material in a challenge to a government contract for translation services for An Garda Síochána. The Court did not order the full set of documents sought by Word Perfect Translation Services Limited. It said the parties should first try to agree the terms of the immediate discovery order, with focused written submissions if they cannot agree.
Word Perfect challenged the Minister for Public Expenditure and Reform’s 2018 decision to award the contract to a rival tenderer. It alleged, among other things, that the evaluation used undisclosed criteria, that its tender was assessed unlawfully and that the Minister failed to observe a standstill period. The Minister denied the claims and opposed discovery, citing relevance, necessity and commercial sensitivity.
The High Court had granted all nine categories of discovery Word Perfect sought. The Court of Appeal overturned that decision. On appeal, the Supreme Court addressed the categories individually and set out how discovery should be assessed where tender documents may contain confidential commercial information.
The Court said confidentiality alone does not prevent disclosure. Courts must weigh the likely importance of documents to a fair resolution against the sensitivity of the information, including information belonging to other bidders. It rejected any automatic entitlement to a rival’s confidential tender material and said discovery must be proportionate to the issues and supported by a credible basis for the relevant claim.
For areas where Word Perfect received no reasons for its marks, the Court directed discovery of the evaluation report, redacted where needed to protect competitors’ sensitive information. It also directed discovery of the redacted evaluation report in relation to the allegations that undisclosed criteria were applied. The report disclosure is limited: it does not include earlier drafts or documents relating to the successful tender. Word Perfect may ask the trial judge for further disclosure if it can show that additional material is needed for a fair resolution.
The Court refused discovery of the category concerning the alleged failure to observe a standstill period, finding no specific disputed fact identified that discovery could resolve. It also declined to order discovery now for categories involving small differences in marks, but left the issue open for the trial judge to revisit in light of the case as a whole. On the allegation that the rival’s tender was abnormally low, the Court was not persuaded that disclosure was then required, while leaving open the possibility of disclosure if the trial judge considers it necessary.
To avoid repeated pre-trial discovery applications, the Court proposed that documents potentially needed for later disclosure be identified in an affidavit and kept available for the judge hearing the full case. The judgment records the proposed course and invites the parties to agree the immediate order; it does not itself set out the final agreed terms.