High Court endorses the Department for Public Expenditure and Reform's approach to evaluating tenders exceeding permissible word limits as "exceedingly fair" and summarises the legal principles applicable to (i) the information to be included in the letter of reasons and (ii) the evaluation of tenders by public bodies.
On 4 May 2018, in Word Perfect Translation Services Limited and the Minister for Public Expenditure and Reform  IEHC 237, Barrett J. delivered judgment refusing the reliefs sought by Word Perfect Translation Services in its application to the High Court to set aside the decision of the Minister for Public Expenditure and Reform to award a contract for translation services to translation.ie.
BACKGROUND TO THE CASE
Barrett J. addressed the core arguments raised by Word Perfect, reasoning as follows.
- In response to the claim that an error was made in the evaluation of the Service Delivery Plan (which was a core part of the documentation required as part of the tender process): Barrett J. noted that one of the four criteria to be assessed in the process was for "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". The Court decided that this had not been adequately addressed by Word Perfect within the permitted word limits in its tender documents. A statement that interpreters would be retained as employees and that they would undergo CPD training, was not sufficient to fulfil the requirement. Furthermore, the tender evaluators were entitled to take an initial decision that the cut-off point for text was the stipulated word limit of 2,000 words and to exclude all text thereafter. Barrett J. determined the marks granted were perfectly justified. (para. 22)
- In response to the claim that there was a want of transparency in the increase of the marks awarded to translation.ie because the preferred bidder was initially allocated a mark of 225 (following the first evaluation) which was then increased to the maximum mark of 250 at the second evaluation meeting, the Court noted that the increase did not affect the category within which the preferred bidder fell– it just increased its marks within the "Excellent" category/band and the evaluators were entitled to come to this conclusion supported by a brief written note of points/ ideas. Exhaustive documentation was not required.
- In response to the claim that the Minister was under a duty to provide reasons why translation. ie got the lower mark for the Quality Assurance Plan dimension of its tender: the Court found that Regulation 6 of the European Communities (Public Authorities' Contracts) (Review Procedures) Regulations 2010 does not require the disclosure of the content of the selected tender, but rather its "characteristics and relative advantages", The Regulations do not refer to disadvantages. Barrett J. also stressed the positive duty which arises for a contracting authority as regards confidentiality and the consequence of this for what can be included in the letter of reasons recognising that "contracting authorities are expressly granted a discretion as to what they may include in same by the Regulations of 2010. For this Court to conclude that a contracting authority is required to provide reasons in a Reasons Letter justifying translation. ie's mark would upset the balance that has hitherto been struck in legislation and case-law between giving the basis of a decision and respecting the interests of confidentiality and competition."
- In response to the claim that the preferred bidder had not in fact submitted a Narrative (as required by the tendering process) the Court considered whether the preferred bidder's tender "told a story". The Court concluded that it did.
- In response to the claim that a manifest error was made by the tender evaluators in deciding that the unsuccessful applicant's tender did not make it clear that key staff members would be made available 24/7 365 days a year: the Court held that no manifest error was made: the documents submitted by Word Perfect had failed to specify (as clearly required by the tender evaluation documentation) that key staff members would be made available as required.
Barrett J concluded by summarising the legal principles applicable to (i) the information to be contained in the letter of reasons and (ii) the evaluation of tenders by public bodies as follows.
1. The information to be included in the letter of reasons
To meet applicable legal standards, the letter of reasons must contain a statement of reasons including the characteristics and relative advantages of the successful tender (Humphreys J. in RPS Consulting Engineers Ltd v. Kildare County Council  IEHC 113, para. 89). The language of the letter of reasons is not to be interpreted as requiring the degree of exactitude and care required from a contract or a piece of legislation. (Baker J. in Somague Engenharia SA v. Transport Infrastructure Ireland  IEHC 435 at para.56).
2. Evaluation of Tenders
Just because some error occurs in a procurement process it does not follow that the only and best relief to be granted by a court is to collapse what has occurred, and return everyone involved to 'Square 1' with a fresh commencement of the tendering process (RPS Consulting Engineers Ltd v. Kildare County Council  IEHC 113). The standard of review applicable to the assessment of bids in procurement cases is: a clear error on the part of a contracting authority in the evaluation and scoring of a tender must be demonstrated; it does not suffice for an applicant simply to contend that a better mark should have been awarded to it. There is no question of permitting a margin of discretion in the face of manifest error (Fennelly J. in SIAC Construction Ltd v. Mayo County Council  3 IR 148).
This article contains a general summary of developments and is not a complete or definitive statement of the law. Specific legal advice should be obtained where appropriate.