High Court lifts suspension of awarding state contract imposed pending outcome of proceedings

About this case:

• Judgment:
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Mr Justice Noonan was satisfied that the interpretation company which initiated proceedings against the State had raised a fair issue to be tried, but found that damages would be an adequate remedy and stressed that the public interest in State interpretation services favoured the suspension being lifted.

Background

In October 2015, the Office of Government Procurement (OGP) initiated a tender request for interpretation services.

Word Perfect Translation Services Limited (WP) submitted a tender to be included on the proposed framework.

In April 2016, a supplemental request for tenders (SRFT) for a 12-month contract was issued by way of mini competition to three service providers.

In August 2016, WP was notified that its tender was unsuccessful; thereafter, in a pre-action letter WP stated its intention to bring a legal challenge to the SRFT.

The OGP then reviewed the SRFT and concluded that the process was flawed; subsequently cancelling the SRFT.

In December 2016, the OGP issued a new SRFT to the three service providers.

There was a max word count of 2,000 for the mini-competition; exceeded by WP, which led to lengthy correspondence between the OGP and WP’s solicitors, and ultimately resulted in the OGP considering WP’s submission on a pro rata basis in respect of each of the categories concerned so that it would comply with the word count limit.

In April 2017, each tenderer was notified that Translation.ie was the preferred bidder.

WP’s application

WP issued proceedings seeking to set aside the award of the contract to Translation.ie on the basis that the OGP’s decision was unlawful and ultra vires:

As a consequence of the legal challenge brought by WP, the execution of a contract for these services with a third party was automatically suspended under the European Communities (Public Authorities Contracts) (Review Procedure) Regulations 2010 as amended by the European Communities (Public Authorities Contracts) (Review Procedures) (Amendments) Regulations 2015.

Accordingly, the Minister applied for an order lifting the automatic suspension imposed.

High Court

Justice Noonan was satisfied that WP raised a fair issue to be tried, but had to consider whether damages would be an adequate remedy.

Accepting that loss of profit was something that could be readily assessed by way of damages; Justice Noonan added that he was in agreement with the views expressed in BAM PPP PGGM Infrastructure Cooperative UA v. National Treasury Management Agency and another IEHC 756, and in Powerteam Electrical Services Ltd. v. ESB IEHC 87, in that it was difficult to accept the proposition that any reputational loss could accrue to WP merely from being an unsuccessful tenderer for a twelve month contract for interpretation services in only one of a larger number of lots across various State entities requiring such services.

Justice Noonan stated that this was “a standard hazard” for any commercial entity competing for State business.

As noted in Powerteam, there was also ample authority for the proposition that loss of chance in competing for such business could be assessed by way of damages.

Considering loss of staff, the cases demonstrate a willingness on the part of the courts to undertake a damages assessment in respect of any loss that may be said to arise from such an event.

Justice Noonan also rejected the suggestion that in failing to obtain the contract, that WP’s business would be ‘terminally affected’.

Accordingly, Justice Noonan held that WP had not not discharged the onus of establishing that damages would not constitute an adequate remedy in this case.

Justice Noonan emphasised that, from the Minister’s perspective, at issue were matters such as “the immigration status and human rights of applicants for international protection and in some circumstances, where the security of the State may be concerned. The importance of these matters, which can hardly be overstated, must in my view also bear directly on any questions of balance of convenience which I am satisfied lie in favour of the Minister”.

In all the circumstances, the public interest clearly favoured having the best possible interpretation services available to the immigration bodies concerned.

Justice Noonan held that it was appropriate to grant the order sought by the Minister and lift the suspension.