Judgment: 2019-03-12 · Court archive

High Court orders discovery in Word Perfect procurement challenge

The court directed the Minister to disclose documents about a disputed translation-services tender, while limiting the discovery Word Perfect must provide on its past tenders.

The High Court · [2019] IEHC 153

Who, what, where, when and why

Who
  • Word Perfect Translation Services
  • Minister for Public Expenditure and Reform (Respondent)
  • Garrett Simons (Judge)
What

The court directed the Minister to disclose documents about a disputed translation-services tender, while limiting the discovery Word Perfect must provide on its past tenders.

Where

Places mentioned in the report

  • An Garda Síochána
When

Judgment:

Other dates in the report
  • 1 February 2019

    The order directs the Minister to make discovery of categories 1 to 9 in Word Perfect’s 1 February 2019 motion. They include documents concerning both tenders’ evaluations, the successful tender and related communications, and the alleged failure to observe a standstill period. Category 10 was no longer disputed.

Why

Reasons reported in the judgment

The Minister argued that disclosure of the rival tender’s commercially sensitive information required a convincing showing that it was indispensable. Justice Simons said the request met that standard in this case. The comparison table sent to Word Perfect was a summary prepared after the evaluation, and could not substitute for the contemporaneous tender and assessment records. The court found the requested material relevant, necessary and proportionate to the pleaded issues.

The High Court has ordered the Minister for Public Expenditure and Reform to disclose tender and evaluation documents in a judicial review brought by Word Perfect Translation Services Ltd. over a contract for interpretation services for An Garda Síochána.

In a judgment delivered on 12 March 2019, Mr Justice Garrett Simons said the documents were needed for Word Perfect to advance its challenge at a full hearing. He stressed that the discovery decision did not determine whether the underlying procurement challenge would succeed; that was for the trial judge.

The dispute concerns a mini-competition held under a multi-supplier framework agreement. Word Perfect was unsuccessful, receiving 848.37 marks, compared with 949.15 for the successful tenderer. Word Perfect alleges that the Minister relied on undisclosed award criteria, evaluated the tenders unlawfully, accepted an abnormally low tender and failed to observe a standstill period. Those claims remain disputed.

The Minister argued that disclosure of the rival tender’s commercially sensitive information required a convincing showing that it was indispensable. Justice Simons said the request met that standard in this case. The comparison table sent to Word Perfect was a summary prepared after the evaluation, and could not substitute for the contemporaneous tender and assessment records. The court found the requested material relevant, necessary and proportionate to the pleaded issues.

The order directs the Minister to make discovery of categories 1 to 9 in Word Perfect’s 1 February 2019 motion. They include documents concerning both tenders’ evaluations, the successful tender and related communications, and the alleged failure to observe a standstill period. Category 10 was no longer disputed.

The Minister also sought documents from Word Perfect. The court ordered Word Perfect to disclose notification letters for public contracts it tendered for between 1 January 2015 and 31 December 2018, limited to tenders called off under framework agreements. The judge said those letters were sufficient to address the dispute about past standstill practices; invitations to tender were unnecessary.

The court made no order on the Minister’s request for documents about Word Perfect’s claim that it tendered at cost, on the understanding that Word Perfect would provide a breakdown of the contract’s costs. A request for documents about alleged lost profit was premature because the case would first address liability, with damages potentially considered later. The judge said he would hear counsel on the time allowed for discovery and the identity of the parties’ deponents.

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