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Procurement Casenote (ROI) - Discovery in Irish Public Procurement Cases: Word Perfect Translation Services Limited v The Minister for Public Expenditure and Reform

  • Ireland
  • Public procurement

27-10-2020

Background

The Irish Court of Appeal has delivered a significant judgment in legal proceedings arising from a challenge by Word Perfect Translation Services Limited (“Word Perfect”) to an order for discovery made by the High Court compelling the appellant, the Minister for Public Expenditure and Reform (the “Minister”) to discover nine categories of documents1.

The decision arises from legal proceedings brought by Word Perfect, an unsuccessful tenderer, challenging the Minister’s decision to award a contract for the provision of translation services to another economic operator following a mini-competition under a multi-party framework agreement.

The key issue which the Court of Appeal had to address was whether the nine categories of discovery sought by Word Perfect and granted by the High Court were relevant and necessary to enable that party to fairly and properly challenge the Minister’s award decision.

In a judgment which has potentially significant implications for economic operators seeking to challenge certain procurement decisions in Ireland, the Court of Appeal overturned the High Court decision in all material respects, concluding that all nine categories of discovery ordered by the High Court were not in fact relevant and necessary for the fair and proper determination of the issues in the proceedings.

Facts of the case

Word Perfect initiated legal proceedings challenging the outcome of a mini-competition for a contract for the provision of translation services. In the course of those proceedings, Word Perfect sought discovery of nine categories of documents which it argued were relevant and necessary to enable it to fairly and properly challenge the Minister’s award decision. The documents sought related to the evaluation of specific award criteria, the successful tenderer’s tender and associated clarifications, the evaluation of the successful tender, the evaluation of Word Perfect’s tender and the failure to observe a standstill period.

The Minister agreed to make limited discovery in respect of four of the nine categories of documents sought, but this offer was refused. Word Perfect subsequently sought an order for discovery in the High Court (Simons J) which determined that all documents sought by Word Perfect were both relevant and necessary. The Court held that the grounds of the challenge were not speculative, but rather derived from what it considered to be “the very limited information which [the Minister] has, to date, made available to Word Perfect”. The Minister appealed this decision.

Decision of the Court of Appeal

The Court of Appeal recited with approval the key principles that guide the Irish Courts in relation to discovery in public procurement cases, as summarised by the Court in BAM PPP PGGM Infrastructure Cooperatie UA v. National Treasury Management Agency and Minister for Education and Skills2:

1. The primary test is whether the documents are relevant to the issues between the parties. Once that it is established, it will follow in most cases that their discovery is necessary for the fair disposal of those issues.

2. Relevance is determined by reference to the pleadings.

3. Documents sought on discovery must be relevant, directly or indirectly, to the matters in issue between the parties to the proceedings.

4. An application for discovery must show it is reasonable for the court to suppose that the documents contain relevant information.

5. An applicant is not entitled to discovery based on speculation.

6. In certain circumstances an order for discovery which is too wide-ranging may be an obstacle to the fair disposal of proceedings rather than the converse.

7. The crucial question is whether discovery is necessary for “disposing fairly of the cause or matter”.

8. There must be some proportionality between the extent or volume of the documents to be discovered and the degree to which the documents are likely to advance the case of the applicant or damage the case of his or her opponent, in addition to ensuring that no party is taken by surprise by the production of documents at trial.

9. Discovery could become oppressive and the court should not allow it to be used as a tactic in war between parties.

The discovery requests were divided into a number of categories.

A number of document categories concerned the evaluation of tenders by reference to specific award criteria. Word Perfect submitted that certain undisclosed award criteria had been applied by the Minister during the evaluation of tenders and the tender documents had been unlawfully interpreted. The Minister had denied this claim, arguing that the alleged undisclosed criteria were merely characteristics or relative advantages of the successful tender. The Minister denied that documents relating to the evaluation of tenders were relevant and necessary for dealing with these claims.

Other categories of documents concerned the successful tender and clarification documents, documents relating to the evaluation of the successful tender and documents relating to the evaluation of Word Perfect’s own tender. These related to the claims (all denied by the Minister) that Word Perfect had been treated unequally; that the Minister had not explained the scores of the successful tender in respect of certain criteria; that the successful tender should have received fewer marks; and that the successful tender was abnormally low.

A further category of documents related to the Minister’s failure to observe a standstill period following the mini-competition.

The High Court had ordered the discovery of documents in all nine categories on the basis that they were both relevant and necessary. It held that the grounds were not speculative and determined that there was no basis on which Word Perfect could properly advance its case without obtaining an order for discovery. According to the judge, discovery was indispensable and it was not sufficient for the parties and the Court to only have access to the summary information provided to Word Perfect in the letteradvising it that it had been unsuccessful. The English case of Roche Diagnostics3 and the Irish case of Somague4 were both cited in support of this decision.

On appeal, the Minister submitted that the trial judge erred in ordering discovery of all nine categories.

In relation to those categories of documents concerning the complaint that undisclosed award criteria were used, the Minister argued that the issue the Court had to determine was not whether the successful tenderer was awarded the correct marks, but rather whether the relative advantages of the successful tenderer were just that (i.e. relative advantages) and not undisclosed award criteria. The Minister argued that no discovery was required for Word Perfect to advance its case on these grounds; this was a matter of interpretation of the tender documentation. Word Perfect countered, arguing that the documents sought were all related to the pleaded grounds and that they were necessary for it to have a meaningful opportunity to present its case. It disagreed that the issue of undisclosed criteria was purely a question of interpretation, contending that there was a clear factual difference between a relative advantage and an undisclosed criterion which can only be resolved by an examination of evaluation documents. The Court of Appeal found that the trial judge was wrong in relation to his conclusions on relevance and necessity. There is no factual dispute to be resolved when determining whether the feedback provided to Word Perfect constituted undisclosed award criteria or merely characteristics or relative advantages. The discovery of documents relating to the evaluation of tenders could not assist Word Perfect in making its case and were therefore not relevant to the narrow issue to which they related.

Another category of documents related to a complaint that Word Perfect had been deducted marks unlawfully for its response to a particular award criterion. The Minister submitted that there was no factual issue at all and that the specific complaint about the deduction of marks did not necessitate the discovery of evaluation documents. Word Perfect argued that it was a factual dispute for which discovery was necessary. Again, the Court of Appeal held that there was no need for Word Perfect obtain sight of this category of documents. The complaint that these documents related to could be resolved by legal argument and reference to the tender documents and feedback. There were no facts in dispute which required sight of the documents for their resolution.

Other documents related to how Word Perfect’s own tender was marked. The Court of Appeal found that the trial judged had failed to consider adequately the actual issues to which these documents were said to be relevant and necessary. The issues concerning how the unsuccessful tender was marked could be resolved by interpreting the tender documents and were not dependent on information from documents sought by discovery.

Word Perfect had also sought discovery of the successful tender and documents relating to the evaluation of both that tender and Word Perfect’s own tender, on the grounds that they were relevant to an alleged breach of equal treatment during evaluation, an alleged failure to explain the scores and the alleged acceptance of an abnormally low tender. The Minister characterised this as speculative and pointed to the fact that the Court of Appeal has previously held that where marks awarded to a successful tenderer for a particular criterion are equal to or lower than the marks awarded to an unsuccessful tenderer, there is no obligation on the authority to give reasons for the marks awarded to the successful tenderer5. The Court of Appeal held that the seeking of discovery of these documents was indeed a ‘fishing exercise’ which aimed at turning up something which might substantiate the claims being made. The Court held that there was insufficient particularity in the pleaded claims to indicate that discovery was necessary.

Finally the Court considered Word Perfect’s application for discovery of documents relating to its claim that the Minister acted unlawfully by failing to conduct a standstill period prior to awarding the contract. Overturning the High Court’s decision on this, the Court of Appeal held that a case of necessity had not been made for what it considered to be the “general category of documents” sought. It considered that this was a ‘general trawl’ of documents which the Minister might have and in the absence of any detail as to the sort of documents that might exist, it was impossible to be satisfied that such documents would be relevant and necessary.

Conclusion

This significant judgment should be considered carefully by procurement practitioners, awarding authorities and economic operators who may be considering challenging public contract award decisions in Ireland.

The complete reversal by the Court of Appeal of the High Court’s decision in relation to all nine categories of documents sought demonstrates the relatively uncertain nature of the law of discovery as it applies to public procurement cases in Ireland and how it is evolving.

The restrictive approach adopted by the Court of Appeal will be welcomed by contracting authorities. However it could create significant difficulties for applicants seeking to challenge award decisions going forward, particularly in the many cases where it is alleged that undisclosed award criteria have been revealed by authority correspondence and where the scoring of tenders is called into question.

The Court of Appeal is clearly mindful of the risk of unsuccessful tenderers trawling speculatively for evidence to substantiate their claims. It favours an approach which forensically examines whether each any every category of document sought is truly relevant and necessary for the disposal of the issues at hand.

Applicants will argue that the bar for discovery is being set very high in procurement cases and this, together with other recent developments (such as the limiting by the Court of Appeal of information that is required to be included in standstill letters when the successful tenderer scores the same or fewer marks for a particular criterion) risks encroaching upon their fundamental right to seek an effective remedy.

Notes:

1 Word Perfect Translation Services Limited v. Minister for Public Expenditure and Reform [2019] IECA 110.

2 BAM PPP PGGM Infrastructure Cooperatie UA v. National Treasury Management Agency and Minister for Education and Skills [2015] IECA 246.

3 Roche Diagnostics Limited v. The Mid Yorkshire Hospitals NHS Trust [2013] EWHC 933 (TCC).

4 Somague Engenharia S.A v. Transport Infrastructure Ireland [2015] IEHC 723.

5 Word Perfect v. Minister for Public Expenditure (no. 3) [2018] IECA 156 (Hogan J). See also Sanofi Aventis v. HSE [2018] IEHC 566.

6 This case note was first published in the Public Procurement Law Review, Issue 4/2020, by Thomson Reuters