Supreme Court upholds decision to set aside state translation service contract

The Supreme Court has upheld a decision setting aside the awarding of a contract for supply of interpreters for the State's immigration service and Legal Aid Board.

Supreme Court upholds decision to set aside state translation service contract

The Supreme Court has upheld a decision setting aside the awarding of a contract for supply of interpreters for the State's immigration service and Legal Aid Board.

Word Perfect Translation Services Ltd was the losing bidder in a 2016 competition to provide the service which was organised by an office within the Department of Public Expenditure and Reform. Word Perfect had been supplying a translation service to the State since 2007.

The winning bidder for the 2016 contract was Forbidden City Ltd, trading as Translation.ie.

Word Perfect brought a challenge to the awarding of the contract to Translation.ie.

The High Court dismissed the challenge a year ago. The Court of Appeal (CoA) however overturned that decision in June 2018. The CoA had also earlier reversed a High Court decision lifting an automatic stay on the awarding of the new contract.

The Minister for Public Enterprise and Reform appealed that decision to a five-judge Supreme Court which on Monday unanimously agreed the award of the contract should be set aside.

Mr Justice Donal O'Donnell, on behalf of the Supreme Court, said he was upholding one of the grounds of "manifest error" on which the CoA had made its decision but he was setting aside the other.

The ground he upheld related to the mark given by the tender evaluators for the "narrative" supplied by the tenderers.

He agreed with the CoA that the mark given to Translation.ie was a manifest error. The fact that there was a margin of just 15 marks out of 1,000 between the two bidders in the final total marking, meant this error had "a causal effect on the outcome of the competition".

In relation to the other ground on which the appeal centred, the awarding of full marks to Translation.ie under the heading "service delivery plan", Mr Justice O'Donnell said he could not conclude, unlike the CoA did, that this was a manifest error.

This was specifically in relation to the marking down of Word Perfect in relation the ensuring translators' skills would be maintained.

Word Perfect was marked down because it exceeded the 2,000 word limit on its submission under this heading by 37%. As a result it was treated as having no proposal in relation to this matter, the judge said.

Given the material available, it might be just as plausibly contended that the mark to Word Perfect was generous in all the circumstances, given the difficulties created by the word count limit, he said.

Mr Justice O'Donnell also said it was "a sobering thought" that even though this case was prosecuted with considerable speed, the period of the intended contract (up to January 2017) had expired.

The costs involved in this litigation "must surely be out of all proportion to the value of the contract to the State parties involved and the respective tenderers".

While the public procurement regime and reviews by the courts of the awarding of these contracts is important to ensuring fairness and relative transparency, "it is important the process be capable of functioning in an effective manner and ensures the public service obtains the benefit of the services tendered for," he said.

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