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On 28 March 2018, the Irish Court of Appeal gave judgment on an appeal against the High Court's refusal to order discovery of parts of a successful tender in a public procurement process (Word Perfect Translation Services Limited v The Minister for Public Expenditure and Reform (No.2))1.
The case reflects two significant difficulties in public procurement disputes:
- Balancing the competing interests of the disclosure of probative material, with the preservation of the confidentiality of highly sensitive documents; and
- Bringing forward a party's case in pleadings as effectively as possible in the limited time normally available, and the implications of this for discovery.
The proceedings concerned a challenge to the award by the Minister of Public Expenditure and Reform (the "Minister") of a contract for the supply of translation services to a number of State bodies.
In October 2015, the Office of Government Procurement (the "OGP") had sought tenders for the provision of interpretation services. Three suppliers, including Word Perfect Translation Services Limited ("Word Perfect") (the appellant), having previously been appointed to the relevant framework, participated in a mini-tender for a particular lot.
Word Perfect’s tender was unsuccessful and it indicated that it intended to challenge the award. This prompted the OGP to review the tender process and to conclude that the process was flawed. Accordingly, it cancelled the mini-tender process.
In December 2016, the OGP issued a new mini-tender. In April 2017, Word Perfect was notified that it was not the preferred tenderer. Word Perfect issued proceedings in May 2017 challenging this decision and sought discovery of, amongst other things, the preferred tender.
On 16 March 2018, the High Court refused to order discovery of this material on the basis that it was irrelevant. On appeal, Word Perfect confined the discovery it sought to three sections of the preferred tender (the service delivery plan; the quality assurance plan; and details of telephone resourcing).
Discovery in Public Procurement Challenges
The Court of Appeal (Hogan J) firstly emphasised the particular importance of pleadings to discovery in procurement cases, in which "the parties are expected to bring forward their entire case with particularity within a short period of time and where the possibility of amendment […] is generally limited".
Having reviewed the relevant portions of the Statement of Grounds filed in the proceedings, the court observed that confidentiality and the legitimate protection of business secrets are indispensable features of a tender process, and that there is an important public policy in promoting a competitive tendering process.
Hogan J opined that the same public policy would be impaired – perhaps even jeopardised – if highly sensitive tender documentation could readily be disclosed through a subsequent discovery process to business rivals. He concluded, therefore, that the case for discovery of such documentation must be "convincingly established as indispensable for the fair disposal of the procurement challenge".
Hogan J quoted extensively from the Court of Justice of the European Union's decision in Varec S.A. v Belgium (Case C-450/06) which examined the general principles concerning the release of information and documents in framework tendering; such competitions being confined to a pre-selected small group of business rivals who are likely to be in constant competition with each other for tender awards. This case is authority for the withholding of certain information in such a tendering process where its release would prejudice the legitimate commercial interests of certain undertakings.
The court went on to note, however, that tender documentation "cannot be regarded as inviolable and immune from the discovery process". The critical point, it held, is that without access to the tender documentation, a disappointed tenderer might never be able to advance a case of manifest error or another flaw in the evaluation process and "[o]ne might equally say that in such circumstances the right to challenge a tender award on these grounds – itself a key aspect of the rule of law and the fair operation of the procurement process – would remain illusory".
In light of this, the court held that access to a rival's tender documentation through discovery is not just governed by the standard requirements of relevance and necessity. Rather, as noted above, the case for discovery must be convincingly established as indispensable for the fair disposal of the procurement challenge.
The court's holding in respect of the three parts of the tender of which discovery was sought was as follows:
(a) Service Delivery Plan
The appeal was dismissed under this head as Word Perfect's claim was that the OGP had misunderstood or wrongly evaluated Word Perfect's own tender and, consequently, access to the rival's tender was not necessary to the establishment of the claim, and could not be deemed to be indispensable;
(b) Quality Assurance Plan
The appeal under this head was allowed. Word Perfect's claim was that the OGP had offered no explanation as to why the preferred tenderer had been awarded 170 marks for its quality assurance plan. The court determined that, in order to have any prospect of making out its case, Word Perfect needed access to that part of the tender. It allowed the appeal subject to certain confidentiality undertakings and directed that the Minister make discovery of the relevant portion of preferred tender.
(c) Telephone Resourcing
The court noted that, while access to this part of the tender did not appear to be indispensable to Word Perfect's case, it was possible that it would emerge at the hearing that Word Perfect was "too greatly handicapped" in this aspect of its claim without access to the relevant documents.
As such, the court varied the High Court order and decided that this aspect of the motion be dealt with at the trial of the substantive action by the trial judge; and
As noted above, Hogan J ordered discovery of the quality assurance plan in the preferred tender subject to certain confidentiality undertakings. Specifically, he stipulated that only Word Perfect's named legal advisors would be permitted access. He directed that any further applications for access could be made to the High Court on notice to the Minister and the preferred tender.
Conclusion and Key Takeaways
- Discovery of a rival's tender documentation will only be ordered where the documents sought are convincingly established as being indispensable for the fair disposal of the procurement challenge.
- Parties to procurement challenges, and in particular, applicants, must take great care in preparing pleadings to ensure that nothing is pleaded, or not pleaded, which unnecessarily curtails the ability to seek discovery of key documents.
- Confidentiality rings, which have typically been confined to competition proceedings, may be ordered by the courts in cases concerning documents of a highly sensitive nature.
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1  IECA 87.