Irish language service provider (LSP) Word Perfect Translations suffered a blow after a High Court ruling on February 2, 2022. The LSP’s failure to submit its own tender rendered it ineligible to challenge a request for tenders put out by the Office of Government Procurement (OGP) in May 2021, the Court said.
“This Court is of the view that when challenging public tenders, the eligibility requirement for challenging a Request for Tender is the same as that for challenging an award of a contract, namely that save in the most exceptional circumstances the applicant has to have submitted a tender,” the decision stated.
The ruling comes after Word Perfect celebrated a minor victory in November 2021. The Court of Appeal had reversed a decision by the High Court of Ireland and agreed to maintain an automatic suspension of the framework agreement for Irish translation services that Word Perfect was calling into question. But the February 2, 2022 ruling lifted the suspension, allowing the request for tenders to proceed.
This is not Word Perfect’s first time taking the OGP to court. Back in 2018, the High Court dismissed Word Perfect’s legal challenge to the OGP’s award of a contract to a rival LSP. The Court found no merit in Word Perfect’s claims of “manifest errors” in the tender and issues concerning the “integrity and transparency of the process.”
This time around, the case focused, not on an award, but on three components of the framework itself.
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Three Points of Issue
The framework agreement for Irish translation, worth an estimated EUR 10m, is divided into three lots, each of which could be assigned to up to 15 bidders.
Under the first lot — translation of standard text, worth about EUR 6m — contracts worth up to EUR 100,000 would be allocated by a rotation system, which Word Perfect called “inconsistent” with the most economically advantageous tender criterion. Under the rotation system, the LSP ranked in first place might end up getting less work than the LSP ranked 15th over the lifetime of the framework.
A minimum pricing requirement applies to all three lots, meaning bidders may not propose rates below the OGP’s minimum rates (11 cents per word). Word Perfect noted that since the OGP’s minimum rates are higher than the rates Word Perfect and other LSPs charge, the requirement could amount to State interference in the market, which could distort competition and potentially compel “entities to breach competition law.”
Word Perfect’s third and final complaint took issue with the minimum revenue requirement of EUR 40,000 applied across all lots. Word Perfect — with a turnover of EUR 867,000 — described the figure as artificially low, thereby risking the admission of tenderers unable to carry out high-volume contracts.
Valid though the complaints may have been, the Court’s decision means that Word Perfect essentially took itself out of the running by failing to submit its own tender before initiating proceedings just days before the June 14, 2021 deadline.
“Since this Court has concluded that Word Perfect does not have standing to challenge the terms of the Request for Tender in the first place, it is not necessary for this Court to make a determination regarding the claims made by Word Perfect that the Request for Tender is itself unlawful,” the ruling stated.