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Word Perfect Translation Services Limited v Minister for Public Expenditure and Reform (No. 3) - Court of Appeal Decision

  • Ireland
  • General


In the latest episode of the ongoing (and groundbreaking)litigation between Word Perfect Translation Services Limited and the Minister for Public Expenditure and Reform concerning the award of a contract for a supply of interpreters to State bodies,the Court of Appeal has overturned a decision of the High Court and found that the contracting authority committed manifest errors in its evaluation process.

This is the third decision of the Court of Appeal in these proceedings but the first on the substantive merits of the case. The appeal was brought by Word Perfect after the High Court rejected all of its complaints of manifest error in the tendering process.

Word Perfect’s two grounds of appeal concerned the evaluation of a quality assurance plan and a service delivery plan.

The first complaint was that the authority erred in finding that the successful tenderer had supplied a ‘narrative’ in response to a question about a quality assurance plan. Word Perfect alleged that the successful tenderer provided only a series of charts, graphs and miscellaneous data in response to the award criteria and not a narrative, and that it was a manifest error for the authority to award it the marks it did (which happened to be less than the marks awarded to Word Perfect) in these circumstances.

The Court of Appeal determined that the tender documents required a narrative in addition to visual tools such as graphs and charts and it rejected the High Court’s analysis that a narrative had been provided by the successful tenderer. It found that it was a manifest error to award the successful tenderer a mark in the highest bracket of marks available for its response to the question.

A second aspect of the evaluation exercise concerned a service delivery plan and a requirement to demonstrate the methods that would ’ensure’ interpreters retain their skills and fluency. The successful tenderer received full marks for its response to this. Word Perfect failed to convince the High Court that the response of the successful tenderer did not include any proposal to ensure skills retention. However, the Court of Appeal overturned the High Court’s decision on this. It was noted that in its response, the successful tenderer merely stated that it would ‘encourage’ skills retention among interpreters, but that there was nothing in the plan that demonstrated how they would actually ‘ensure’ this. The Court of Appeal found that the response did not fully comply with the tender requirements and did not justify the successful tenderer obtaining a perfect score. It found that the High Court was wrong not to find a manifest error on the part of evaluators in this regard.

This is a relatively rare decision of the Court of Appeal on the substantive merits in a public procurement case. It demonstrates how critically important it is for tenderers to address all aspects of the questions asked of them but also how important it is for evaluation teams to understand the award criteria they are applying and to ensure that the marks awarded are fully justified. It is also. The strongly diverging views of the High Court and the Court of Appeal on whether information presented in a tender met the requirements of the questions asked illustrates the assessment difficulties faced by evaluation panels.

In relation to two other grounds of appeal raised by WordPerfect, the High Court’s decisions were upheld. The Court of Appeal found that evaluators were not required to explain why the provisional marks awarded to tenderers evolved over the course of a number of evaluation meetings – to do so would add a new layer of complexity. It also held that Word Perfect was not entitled to the additional reasoning it sought in respect of questions where it had achieved higher scores than the successful tenderer - this has implications for awarding authorities who are often concerned about the extent of feedback they have to provide to unsuccessful
tenderers in such circumstances.

Ultimately, the Court of Appeal set aside the award of the contract to the successful tenderer as a result of the two manifest errors of assessment that it found.

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