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Judgment
Title:
Word Perfect Translation Services Limited -v- The Minister for Public Expenditure and Reform
Neutral Citation:
[2018] IECA 156
Court of Appeal Record Number:
2018 203
High Court Record Number:
2017 150 MCA
Date of Delivery:
06/07/2018
Court:
Court of Appeal
Composition of Court:
Peart J., Irvine J., Hogan J.
Judgment by:
Hogan J.
Status:
Approved
Result:
Allow appeal


THE COURT OF APPEAL
Record No. 2018/203

Peart J.
Irvine J.
Hogan J.

IN THE MATTER OF THE REVIEW OF THE AWARD OF A PUBLIC CONTRACT PURSUANT TO THE EUROPEAN COMMUNITIES (PUBLIC AUTHORITIES’ CONTRACTS) (REVIEW PROCEDURES) REGULATIONS 2010 AND ORDER 84A OF THE RULES OF THE SUPERIOR COURTS (AS AMENDED)


BETWEEN

WORD PERFECT TRANSLATION SERVICES LIMITED

APPELLANT

- AND -

THE MINISTER FOR PUBLIC EXPENDITURE AND REFORM (NO. 3)

RESPONDENT


JUDGMENT of Mr. Justice Gerard Hogan delivered on the 7th day of June 2018

1. This is now the third judgment which this Court has been called upon to deliver at very short notice in these complex public procurement proceedings. The first judgment (Word Perfect Translation Services Ltd. v. Minister for Public Expenditure and Reform (No. 1) [2018] IECA 35) concerned the question of whether damages are an adequate remedy in procurement cases. The second judgment (Word Perfect Translation Services Ltd. v. Minister for Public Expenditure and Reform (No. 2) [2018] IECA 87) concerned aspects of the discovery process with particular reference to the discoverability of the tender submitted by the winning party). In this third judgment the Court is now hearing an appeal brought by the claimant, Word Perfect Translation Services Ltd. (“Word Perfect”) from the decision of Barrett J. to dismiss its claim in the substantive proceedings: see Word Perfect Translation Services Limited v. Minister for Public Expenditure and Reform [2018] IEHC 238.

2. In his judgment Barrett J. dealt in a thorough and comprehensive way with a range of arguments before rejecting all of them. Indeed, Word Perfect has elected not to pursue many of these grounds which had been advanced and rejected in the High Court in this appeal. It has instead confined itself to essentially four grounds of appeal, two of which raise wider issues of principle in relation to the procurement process and the other two relate to particular aspects of the evaluation process. The four grounds are (i) manifest error in relation to the evaluation of the manner in which the tenderers would see that the interpreters retained their skills; (ii) manifest error in relation to the evaluation of one aspect of the quality assurance plan (and, in particular, whether Word Perfect’s successful rival, Translations.ie had supplied a narrative as required by the supplementary request for a tender (“SRFT”); (iii) whether the evaluators were consistent in their deliberations during the course of the evaluation process and (iv) whether Word Perfect was entitled to reasons in respect of those areas where it had actually performed better than Translations.ie.

3. I propose presently to consider each of these grounds of appeal in turn, albeit not quite in that order. It is, however, first necessary to once again to rehearse the background to the proceedings.

The background to the proceedings
4. On 12 October 2015, the Office of Government Procurement (“OGP”) published a request for tenders to establish a multi-supplier framework agreement for the provision of interpretation services (excluding Irish) (“the Framework Agreement”). The Framework Agreement included eight lots, but the present proceedings concern Lot 4 which was for the provision of interpretation services to the Immigration Service and the Legal Aid Board. Three suppliers were appointed to Lot 4 and were invited to tender against each other for this contract award. The suppliers included Word Perfect and Forbidden City Ltd., trading as Translation.ie.

5. In 2016 the OGP issued a revised SRFT for Lot 4 for the provision of services to the Immigration Service (including the Irish Naturalisation and Immigration Service, the Office of the Refugee Applications Commissioner, the Refugee Appeals Tribunal, the Reception and Integration Agency) and the Legal Aid Board. The SRFT originally set a closing date of 6 January 2017 for the receipt of tenders. As a result of clarifications sought by Word Perfect, certain amendments were ultimately made to the award criteria and to the chart setting out the scoring bands for the competition. The deadline for the receipt of tenders was extended to 17 January, 2017, but on 18 April 2017 the Minister for Public Expenditure and Reform notified Word Perfect of his decision to award the contract to Translation.ie.

6. There is no doubt but that the competition was keenly and closely contested. In the end Word Perfect lost out by some 15 marks out of a possible 1,000. The very closeness of the contest may indeed be said to be at the heart of the present proceedings because, as I have already noted, Word Perfect seek to establish that in two discreet respects the contracting authority awarded marks to its rival in such a manner as to constitute a manifest error on the part of the authority. Word Perfect accordingly submits that the tender award was flawed by reason of these manifest errors, such that the award should be quashed and the competition re-run.

7. It is unnecessary for present purposes to detail the complex procedural steps which led up to the substantive hearing in April 2018: these matters are fully set out in the two earlier judgments of this Court.

8. So far as the present appeal is concerned, the focus is on what is said to be two substantive evaluation errors, namely, first an error in the evaluation of the service delivery plan and, second, in respect of the quality assurance plan. Before examining these substantive issues, it may, however, be useful to set out the scoring methodology employed in the SRFT:

9. Under the heading “Methodology for Calculating Scores when evaluating Award Criteria” identified in the SRFT the following explanatory table appears (at p. 17 of the tender document):

      “Weighting / Meaning

      80-100%: - Excellent response that fully meets or exceeds requirements, and provides comprehensive and convincing assurance that the Tenderer will deliver to an excellent standard.

      60-79%: A very good response that demonstrates real understanding of the requirements and convincing assurance that the Tenderer will deliver to a very good or high standard.

      40-59%: A satisfactory response which demonstrates a reasonable understanding of requirements and gives reasonable assurance of delivery to an adequate standard but does not provide sufficiently convincing assurance to award a higher mark.

      20-39%: A response where reservations exist. Lacks full credibility/convincing detail, and does not provide confidence to the Contracting authority that the required services will be successfully delivered.

      1-19%: A response where serious reservations exist. This may be because, for example, insufficient detail is provided, or the response has fundamental flaws, or is seriously inadequate or seriously lacks credibility with a high risk of non-delivery.

      0%: No response or partial response only and poor evidence provided in support of it: failure to meet the requirements.”

The Quality Assurance Plan: The marks for the missing narrative
10. As I have already observed, the first ground of appeal is that the evaluators committed a manifest error by wrongly treating Translations.ie as having supplied a narrative when it is said that they did not. Section 4.3 of the SRFT addressed the question of the provision of management information reporting. Specifically, under the heading of the Quality Assurance Plan, the SRFT required that:
      “The Immigration Services and the Legal Aid Board require an effectively and efficiently managed interpretation service. Management Information Reporting is critical to this function. Tenderers must explain in their tender how they will provide high quality, well presented and accurate Management Information Reports (‘MI Reports’). In addition, given the criticality of MI Reports, tenderers have been provided with monthly management information set out in the Excel spreadsheet at Appendix 2 (‘Notional Information’). The notional information provided is for March 2015. The notional Quarter referred to is Quarter 1, 2016 – January, February, March.

      In all cases the MI Reports must clearly distinguish between Telephone Interpretation Services AND On-Site Services. MI Reports must convey information to management in a clear and transparent manner and in a format that allows Framework Clients to understand the information. The detail provided must be sufficient for management to have no need to review source data other than for verification purposes. The sample monthly MI reports must be displayed in an easy to read format using PDF, Open Office or Microsoft Office readers. MI Reports must use relevant visualisation tools, such as charts, graphs, etc. to display pertinent information (as set out in Appendix 2 of this SFRT), graphically, with clear labelling of titles, legends, values, axis, categories, trend lines, scales, data source, grid lines, data points, etc. Each report must include a narrative summarising the information provided, including how they will ensure that these MI Reports will be provided to Framework Clients in a timely manner. The Successful Tenderer will be required to produce the MI Reports in the same format as submitted with their Tender.” (emphasis supplied)

11. In this exercise, therefore, the tenderers were given sample data and were asked to demonstrate how this information could be displayed both visually and in narrative form. In this regard, Word Perfect scored full marks for what was plainly a high-quality narrative report. By contrast, Translation.ie scored 170 marks for its contribution.

12. One critical issue which emerged at the hearing of the appeal was whether Word Perfect had, in fact, supplied a narrative in the manner required by the tender. In his judgment in the High Court Barrett J. had concluded that it had, saying:

      “One question that arose at hearing was whether Translation.ie had in fact provided a narrative. Certainly the narrative it provided was not as good as that of Word Perfect. But that is not the test (and Word Perfect in any event scored higher); the test is whether translation.ie provided a narrative. In this regard, the court asked at hearing ‘what is a narrative?’ In reply it was referred, inter alia, to certain dictionary definitions. Thus, the Collins Online Dictionary defines a ‘narrative’ as “an account, report, or story…”. The Oxford English Reference Dictionary (2nd ed) describes a ‘narrative’ as “a spoken or written account of connected events in order of happening”. Counsel for the Minister noted that the verb to narrate comes from the Latin ‘narrat’ which means ‘to relate’ or ‘to tell’ and thus what one is looking for in this regard is something that tells a story, an approach which accords with the Collins and Oxford definitions.

      Did the documentation provided by translation.ie ‘tell a story’ and otherwise conform with the requirements of the SRFT? It seems to the court to be undeniably the case that the coloured charts, bars, graphs and miscellaneous data supplied by SRFT in this regard, together with certain written, comparatively limited commentary do ‘tell a story’, do comprise a narrative and do otherwise conform with the requirements of the SRFT.

13. Barrett J. went on to refer to the affidavit of Ms. Anne Lannon, the Chair of the Evaluation Panel:
      “[I]t is unclear whether the applicant is seeking to assert…that there was no narrative report contained in the preferred bidder’s tender. If this is the case, I can confirm that said tender did include a narrative report. A general narrative was provided in Appendix 2 and a more detailed narrative was provided in the tender under Award Criterion 4.3…”.

The decision in Gaswise and Tender Documentation
14. This issue requires us to consider both the questions of the standard of review and the interpretation of tender documents. So far as the standard of review is concerned, the applicable test is that of manifest error as articulated by Fennelly J. in SIAC Ltd. v. Mayo County Council [2002] IESC 39, [2002] 3 I.R. 148, 175-176:

“I would observe, however, that the word, ‘manifest’ should not be equated with any exaggerated description of obviousness. A study of the case-law will show that the Community Courts are prepared to annul decisions, at least in certain contexts, when they think an error has clearly been made. The decisive additional consideration in the area of the public procurement is the explicit concession of a wide margin of discretion to awarding authorities. …The courts must be ready, in general, to render effective the general principles of the public procurement, already discussed. Where a failure to respect the principles of equality, transparency or objectivity is clearly made out, there is, of course, no question of permitting a margin of discretion. ….Even in cases of the most economically advantageous contract, it is clear that unlimited discretion can not be permitted. The margin of discretion enjoyed by the awarding authority does not absolve it from explaining a choice, such as was made in the present case, of a tender other than the lowest….Therefore, I am satisfied that the courts, while recognising that awarding authorities have a wide margin of discretion, must recognise that this cannot be unlimited. The courts must exercise their function of judicial review so as to make the principles of the public procurement directives effective. In the case of clearly established error, they must exercise their powers. The application of these principles may not, in practice, lead to any real difference in result between the judicial review of purely national decisions and of those which require the application of Community law principles.”

15. So far as the interpretation of tender documents is concerned, this question was considered by Finlay Geoghegan J. in her judgment in Gaswise Ltd. v. Dublin City Council [2014] IEHC 1, [2014] 3 I.R. 1 in which she reviewed at some length the relevant case-law.

16. In Gaswise the claimant company had been excluded from a tender competition because it had not included in its own tender what was described as a replacement parts statement (“RPS”). It had instead submitted a replacement parts list (“RPL”). The question therefore, was whether the tender document, as properly interpreted, required a RPS and not a RPL.

17. So far as the general principles of interpretation were concerned, Finlay Geoghegan J. stated ([2014] 3 I.R. 1, 9):

      “The interpretation of the ITT is a matter for the court. That interpretation must be carried out in a manner which gives effect to the core principles of equal treatment and transparency in the legislative framework as amplified by the judgments, in particular of the CJEU. Article 2 of [Public Works] Directive 2004/18/EC…provides:

        “Contracting authorities shall treat economic operators equally and non-discriminatorily and shall act in a transparent way.”
18. The judge then conducted a very helpful review of the CJEU case-law ([2014] 3 I.R. 1, 9-10):
      “The principle of equal treatment has been referred to as being “at the very heart of the public procurement directives” (Fabricom SA v. Belgium (Case C- 21/03) [2005] E.C.R. 1-1559 at para. 26). In Universale-Bau & Ors. (Case C-470/99 [2002] E.C.R. I-11617 the CJEU said of the relationship between the principle of equal treatment and the principle of transparency:

      “[91] The principle of equal treatment, which underlies the directives on procedures for the award of public contracts, implies an obligation of transparency in order to enable verification that it has been complied with….

      [93] It follows…that the procedure for awarding a public contract must comply, at every stage, particularly that of selecting the candidates in a restricted procedure, both with the principle of equal treatment of the potential tenderers and the principle of transparency so as to afford all equality of opportunity in formulating the terms of their applications to take part and their tenders…”

19. The application of the principles of equal treatment and transparency to the formulation of award criteria was specifically considered in Case C-19/00 SIAC Construction v. Mayo County Council [2002] E.C.R. I-7725, where CJEU stated:
      “41. Next, the principle of equal treatment implies an obligation of transparency in order to enable compliance with it to be verified…

      42. More specifically, this means that the award criteria must be formulated, in the contract documents or the contract notice, in such a way as to allow all reasonably well-informed and normally diligent tenderers to interpret them in the same way.

      43. This obligation of transparency also means that the adjudicating authority must interpret the award criteria in the same way throughout the entire procedure…”

20. Finlay Geoghegan J. continued by saying that the reasonably well-informed and diligent tenderer test continued to be the test applied by the CJEU. In Case C-368/10 Commission v. Netherlands [2012] 3 C.M.L.R. 11 the Court had stated:
      “The principle of transparency implies that all the conditions and detailed rules of the award procedure must be drawn up in a clear, precise and unequivocal manner in the notice or contract documents so that, first, all reasonably informed tenderers exercising ordinary care can understand their exact significance and interpret them in the same way and, secondly, the contracting authority is able to ascertain whether the tenders submitted satisfy the criteria applying to the relevant contract…”
21. Finlay Geoghegan J. then proceeded to quote the comments of McCloskey J. in Clinton (Trading as Oriel Training Service) v. Department for Employment and Learning & Anor [2012] NIQB 2 where he stated:
      “The SIAC test exhorts the court to attempt, so far as practicable, to occupy the shoes of the hypothetical tenderer. The test provides some insight into the characteristics and attributes of such a tenderer: well, but not necessarily fully, informed and usually careful and attentive, but not invariably a paragon of diligence. The incorporation of the adjectives ‘reasonably’ and ‘normally’ in the test, convey the notion of a tenderer who may be vulnerable to a certain (though not excessive) degree of error, inattention and other human weakness. In other words, the SIAC hypothetical tenderer is a terrestrial, rather than celestial, being, hailing from earth and not heaven. In its determination of this issue, I consider that the court should approach the matter not as an exercise in statutory construction or as one involving the interpretation of a deed or contract or other legal instrument. To adopt such an approach would not, in my view, be consonant with the SIAC test. Rather, the court’s attention must focus very much on the ‘industry’ concerned, in which the professionals and practitioners are not lawyers.”
22. Finlay Geoghegan J. then noted the evidence which showed that different tenderers had interpreted this specific requirement differently. She then went on to examine the tender requirements and specifications in some detail, saying ([2014] 3 I.R. 1 13)::
      “Objectively considered, the ITT, including the clarification given, was capable of being construed as contended for by DCC, i.e., a replacement parts statement should be submitted and not a replacement parts list. However, as appears from the principles set out in this judgment that is not the relevant test for the proper interpretation of the ITT. The ITT, including the clarification given, considered objectively from the perspective of a reasonably well-informed and diligent tenderer in the gas services industry does not, in my judgment, include a clear and precise requirement that a replacement parts statement must be submitted with the tender document such that all reasonably well-informed and diligent tenderers might understand this requirement uniformly. The ITT, including the clarification, was also open to being understood by a reasonably well-informed and diligent tenderer relying (as he was entitled to do) on the checklist to identify the documents to be attached as meaning that the provision of the document at Item 10 in the checklist, i.e., itemised list of replacement parts”, was sufficient to satisfy the rule in respect of the replacement parts criterion.

      It follows that [the Council] was in breach of its obligations of equal treatment and transparency in relation to the terms of the ITT. Further that the Court’s decisions on the issues as put are that the ITT, properly interpreted and in the light of clarifications issued, did not require the submission of a replacement parts statement and that it was not lawful for the respondent to exclude the applicant by reason of its failure to attach a replacement parts statement.”

23. For my part, I think that this is clearly the approach to be followed so far the interpretation of the SRFT in the present case is concerned. The word narrative is a fairly ordinary English word which the reasonably diligent and well-informed tenderer would well understand as one requiring a written statement. This is especially so in the context of the actual language of the tender document itself (“…a narrative summarising the information provided…”). Perhaps in this context a celestial being would have the time and inclination to ponder the Latin etymology of the word “narrative”, but as McCloskey J. so memorably reminded us in Clinton, the hypothetical well-informed tenderer is very much of this world.

24. Any doubts which such a person might have had would surely have been dispelled by the fact that the SRFT had stated just a few lines previously that the management information reports “must use relevant visualisation tools” such as “charts, graphs, etc. to display pertinent information…. graphically, with clear labelling of titles, legends, values, axis, categories, trend lines, scales, data source, grid lines, data points.” On any view, therefore, this relevant provision of the SRFT required the tenderer to supply both a visual display or depiction of the information by way of charts, graphs etc. and a narrative summary. Some might think that the narrative summary requirement was superfluous, but there is, I fear, no escaping the conclusion that, viewed objectively, this is what the SRFT actually required.

25. There can equally be little doubt but that Translations.ie did not provide a narrative summary in this sense. It certainly displayed a range of pie-charts, graphs etc. from which this information might well be gleaned, but for whatever reason, it did not supply the narrative summary which the SRFT required.

26. What, then, is the consequence of this omission? It should be recalled that Translations.ie was awarded a score of 170 (85%) under this heading. This score was in the top band of marks which was reserved for a tender that “fully meets or exceeds requirements, and provides comprehensive and convincing assurance that the tenderer will deliver to an excellent standard.” While a court should naturally be reluctant to review the actual marks awarded by the evaluation team and still less must it step into their shoes, I nonetheless find it difficult to see how Translations.ie could have received a score in the top band of marks under this heading when, almost by definition, it could not have “fully met” the SRFT requirements in the absence of a narrative statement.

27. Applying the test posited by Fennelly J. in SIAC I find myself compelled to conclude that this amounted to manifest error on the part of the evaluation team. While accepting fully the difficulties which always confront an evaluation team in the case of complex tender of this kind, I cannot avoid concluding that error has been clearly established. As Fennelly J. observed in SIAC in such circumstances the courts must exercise their function of judicial review “so as to make the principles of the public procurement directives effective.”

The Service Delivery Plan
28. The second manifest error which is said to have arisen relates to one aspect of the how the service delivery plan was evaluated and, specifically, in relation to the requirement that interpreters retains their skills and fluency. The relevant section of the SRFT was in the following terms:

      “….Tenderers must set out the methods employed to ensure that interpreters will retain their skills in the language and remain up to date with their practice and fluency to a sufficient standard to ensure effective delivery of the service in all 4 language groups. Responses will be evaluated on the quality, comprehensiveness and suitability of the proposed Service Delivery Plan to the requirements of the Framework Clients. Tenderers are free to include any other value added aspects of how the above processes will operate having regard to the Framework Clients needs but tenderers must bear in mind the maximum word count available to their response.” (emphasis supplied)
29. In the reasons letter the OGP gave the following explanation to Word Perfect for the results under this heading:
      “Translation.ie (250 marks):

      An excellent response covering all the requirements set out in the SRFT, demonstrating a clear understanding of the business requirements of clients and providing convincing and comprehensive evidence of ability to provide robust and flexible provision of a sustainable, consistently high quality, reliable service on a 24/7/365 basis. The proposal contained clear information on methods employed to ensure interpreters retained their skills.

      Your Tender (197.5 marks):

      A very good response in relation to reliability of service and the proposal to meet urgent requests, providing a detailed outline as to how bookings will be received, confirmed and activated on a 24/7/365 basis. However, your response did not include any proposal in respect of the methods employed to ensure that interpreters will retain their skills in the language and remain up to date with their practice and fluency to a sufficient standard to ensure effective delivery of the service in all 4 language groups.” (emphasis supplied)

30. The fundamental complaint advanced here by Word Perfect is that the Translation.ie tender had merely stated that it would encourage such skills retention on the part of its interpreters, but that the tender did not state how this would be ensured. So far as can be seen, much the same could – more or less – be said with equal measure in respect of the Word Perfect tender, because it too had itemised matters designed to encourage its translators to retain their skills, by, e.g., encouraging interpreters to attend continuous professional development training as distinct from requiring them to do so as a condition of their contracts of employment.

31. It is not, I think, really disputed that the Translation.ie tender simply referred to steps that would encourage – rather than require – its interpreters to retain their language skills. Here again I find myself compelled to conclude that this too amounted to a manifest error in the SIAC sense of that term, even allowing for the widest margin of appreciation which can fairly be done within the scope of the procurement rules. The plain fact is that both tenderers did not fully comply with the requirements of the SRFT in that neither demonstrated that they would ensure – rather than simply encourage – their interpreters to retain their skills. That is not to say that Translations.ie might not justly be held to have out-scored Word Perfect in any assessment under this rubric. But what cannot be allowed to stand is the conclusion that Translations.ie achieved a perfect score when – no less than their rival bidder – they submitted a tender which did not completely comply with the SRFT.

The increase of the marks for Translations.ie during the course of the evaluation process
32. The third complaint advanced by Word Perfect relates to the manner in which the marks for both bidders altered during the course of the evaluation process. At the first evaluation meeting on 27 January 2017 the marks given were what was described as “holding” marks. On this evaluation Word Perfect scored 878 (out of 1,000) and Translations.ie scored 833. At the second evaluation meeting on 1 March 2017 Word Perfect scored 874 and Translation.ie scored 885. The final evaluation meeting was held on 27 March 2017 and at that meeting Word Perfect scored 870 and Translations.ie were 885.

33. In the High Court Barrett J. rejected the argument that the evaluators were required to explain the progression of marks as between the various evaluation meetings. I think that he was perfectly correct in so holding. As he put it, the test of “manifest error is a ground of objection targeted ultimately at an impugned decision, not at the notes of the meetings which precede the making of such decision.”

34. Just as importantly, evaluators should have the freedom to explore, consider and reflect on the strengths and weaknesses of the various tenders. As I already have had occasion to remark elsewhere in this judgment, the task of the evaluators is already difficult enough. If they were required to explain possible changes in thinking between evaluation meetings prior to the final decision it would add new layers of complexity – not least in terms of discovery and oral evidence – to an already complex system of public procurement litigation.

35. Such a requirement would, moreover, stifle the necessary freedom which evaluators must have to reflect on the respective merits of the bids. The evaluators must be prepared to stand or fall by a review of the final published evaluation for manifest error. But short of that they cannot be expected to have to defend what are, at best, tentative or provisional views expressed during the course of evaluation process. I would accordingly reject Word Perfect’s appeal under this heading.

Whether Word Perfect were entitled to reasons in respect of those criteria where it outperformed its competitor?
36. The reasons letter provided the scores for both tenderers and a description of the characteristics of the successful tender. Word Perfect was supplied with reasons and a comparative assessment in respect of those criteria where it was outperformed by Translations.ie. It was not, however, supplied with reasons in respect of those criteria where it had achieved higher scores than Translations.ie. Word Perfect maintains that it was also entitled to this information as well.

37. Article 6 of the European Communities (Public Authorities’ Contracts)(review Procedures) Regulations 2010 (S.I. No. 130 of 2010)(“the 2010 Regulations”) provides for the giving of notices to unsuccessful tenderers. It states in relevant part as follows:

      “(1) …[A] notice to an unsuccessful tenderer…shall be as set out in this Regulation.

      (2) Such a notice–(c) for each unsuccessful tenderer…shall include…..

      (ii) in the case of an unsuccessful tenderer, a summary of the reasons for the rejection of his or her tender.

      (3) In the case of a tenderer who has submitted an admissible tender (that is, a tender that qualifies for evaluation under the rules of the relevant tender process) the summary required…shall comprise –

      (a) the characteristics and relative advantages of the tender selected…”. (emphasis supplied)

38. It is true that the argument advanced by Word Perfect has a certain attractive symmetry to it. If under criterion A losing tenderer X scores 80 points while successful tenderer Y gains 90 points, X is entitled to reasons. But if under criterion B, X scores 100 points and Y obtains 90, X is not (currently) entitled to reasons, even though a key part of its own argument might well be that Y was entitled to but a fraction of these marks and that this would have made all the difference to the outcome of the competition.

39. While the cogency of this argument cannot be gainsaid, the fact remains that the language of Article 6(3)(a) of the 2010 Regulations (“…characteristics and relative advantages of the tender selected…”) is careful and particular. Had the drafters intended to cater for the argument now advanced by Word Perfect, they could just as easily have stated that these provisions applied to both disadvantages as well as advantages.

40. In his judgment, Barrett J. addressed this argument in a comprehensive manner:

      “Notably, (i) the Regulations of 2010 do not require the disclosure of the content of the selected tender, but rather its “characteristics and relative advantages”, and (ii) there is no mention of disadvantages in the just-quoted text. It is true that there have been at least two United Kingdom cases, viz. Partenaire Ltd v. Department of Finance and Personnel [2007] NIQB 100 (an application for extension of an interim injunction which stayed a procurement process conducted by a contracting authority) and Lightways (Contractors) Ltd v. North Ayrshire Council, [2008] SLT 690 (an application for interim suspension of a decision by a local contracting authority to accept a particular tender) – neither of which cases was opened before the court but both of which are referenced in Arrowsmith, S., The Law of Public and Utilities Procurement, Vol I (3rd ed), 1358, which was opened before the court – which between them suggest that it is arguable that general European Union law obligations of objectivity, transparency and non-discrimination (all of which are accepted by this Court to be of application) should ensure that such reasons as are given include such information about a successful bid or bids as would permit a well- informed and diligent tenderer to understand the relative advantages and disadvantages of the respective bids. But (i) as Charleton J. observes in Oltech (Systems) Ltd v. Olivetti UK Ltd [2012] IEHC 512, para.8 – writing in a very different context, though his observations would appear to have a general resonance – “experience demonstrates that there is little that cannot be argued”, and (ii) even Professor Arrowsmith appears to shrink from stating that the arguable is the actual, confining herself to the following submission, at 1358:“[I]t is submitted that…a tenderer should be able to understand the assessment of the relative advantages and disadvantages of the respective bids for it to establish whether it has been fairly treated.”
41. The judge then continued:
      “As it happens, the court does not consider that it need arrive at a concluded view in this regard because what Word Perfect wants is to go very much further than knowing the advantages and disadvantages: it wants to know if the translation.ie marks were justified at all. Two points might be made in this regard. First, that is a very different proposition, for which one does not find support in the express text of the Regulations of 2010 and which would appear to take the application of the above-mentioned European Union law obligations to a place for beyond what any of Partenaire, Lightways or indeed Professor Arrowsmith, contemplates. (Nor is there case-law of the Court of Justice which states that such a position is mandated by European Union law). Second, for the contracting authority to identify concrete points of relative disadvantage between the two bids would not explain to Word Perfect why translation.ie got the marks it did, it would only explain why it got lower marks, an exercise which (a) seems pointless and (b) would involve the contracting authority addressing the substance of the translation.ie bid for no good reason.”
42. I cannot but agree with this very careful analysis. I would simply add that, to return to the point made earlier, while a cogent case can be made that a full set of reasons covering disadvantages as well as advantages would advance the transparency of the procurement process, it would also add to the already significant difficulty and burdens faced by evaluation teams. As this case itself shows, these burdens are already very considerable and the courts must be careful to ensure that requirements imposed in order to advance the cause of transparency do not render the public procurement process effectively unworkable. At all events, it is sufficient to say that as this requirement is not one which is imposed by either Article 6 of the 2010 Regulations or by the case-law of the CJEU, Barrett J. was correct in concluding that Word Perfect was not entitled to the additional reasons which it sought.

Conclusions
43. I would summarise my principal conclusions as follows:

44. First, Word Perfect has established manifest error so far as the quality assurance plan issue was concerned. Translation.ie did not supply a narrative in the manner required by the SRFT and the evaluators erred in marking the preferred bidder as if it had.

45. Second, the same is also true so far as the service delivery plan marks were concerned. Neither party had submitted a tender which fully or completely complied with the requirement in the SRFT that they demonstrate measures to ensure that the interpreters retain their translation skills. Both tenderers had merely demonstrated measures to show that they would encourage this on the part of their interpreters, as distinct from ensuring that this would be so.

46. Third, while the evaluation team must stand or fall by the ultimate award and the reasons for it, they are not required to explain the process by which they arrived at the final marks or the manner in which the adjudication evolved during the course of the evaluation meetings.

47. Fourth, in view of the language of Article 6 of the 2010 Regulations, Word Perfect are only entitled to the reasons for the comparative advantage of the preferred bidder and not to the reasons for the comparative disadvantage of that bidder.

48. While I agree with Barrett J. in respect of the third and fourth grounds of appeal, I would nonetheless allow the appeal in respect of the two findings of manifest error.

Conclusions as to remedy
49. In view of these two findings of manifest error, I consider that the Court has no alternative – not least given the closeness of the contest in the tender process - but to follow the approach taken by Finlay Geoghegan J. in Gaswise, namely, to make an order setting aside the decision to award the contract to Translations.ie in accordance with Article 9 of the 2010 Regulations. This is, I agree, an unfortunate state of affairs in view of the obvious and commendable dedication of the evaluation team and I am sure that this decision will cause grave disappointment to Translations.ie.

50. It is nonetheless necessary for this Court to uphold and apply the essence of the public procurement rules as prescribed by EU law. It is for these reasons that I would accordingly allow the appeal and grant the order as proposed.











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