Summary

In Word Perfect Translation Services Limited ("Word Perfect") v The Commissioner of an Garda Síochána (the "Commissioner"), the High Court held that Word Perfect's application for injunctive relief did not concern: (a) an alleged wrong taking place during the course of a procurement procedure; or (b) an application for review at the end of a procurement procedure. Therefore, Word Perfect's application would not be assessed under Regulation 8 of the European Communities (Award of Contracts by Utility Undertakings) (Review Procedures) Regulations 2010 (the "Remedies Regulations"), but under the traditional common law principles (the so-called Campus Oil principles) i.e. a) that monetary damages would not be an adequate remedy; b) that there is a fair or substantial question to be tried; and c) that the balance of convenience lies in granting the injunction.

Background

Word Perfect initiated judicial review proceedings in relation to a decision by the Commissioner to award interpretation services to preferred bidders to the exclusion of Word Perfect.

Pending that hearing, Word Perfect sought an interlocutory injunction to restrain the Commissioner from procuring interpretation services on the basis of a framework agreement which had commenced in February 2009 and which expired in August 2013.

Word Perfect was also requesting the Court to compel the Commissioner to only procure interpretation services on the basis of a framework agreement of the Department of Justice and Equality.

Applicable law

Regulation 8(1) of the Remedies Regulations allows an eligible person in a procurement procedure to apply to the High Court for injunctive relief to suspend that procedure either during a tender process, or following the completion of the tender process, so the decision can be reviewed.

In a previous case, OCS v. Dublin Airport Authority PLC [2014] IEHC 306 ("OCS"), the High Court held that, where an applicant is seeking to maintain in place the automatic suspension that arises on an application under Regulation 8 which prevents the contracting authority from concluding the contract, it merely had to demonstrate that the negative consequences of lifting the automatic suspension did not exceed the benefits of maintaining the suspension in place. In a subsequent appeal to the Supreme Court, the Court held that Irish courts did not have jurisdiction to lift the automatic suspension. The Irish legislature subsequently introduced new legislation (Regulations 192 and 193 of 2015) in May 2015 giving leave to contracting authorities to apply to the courts to lift the automatic suspension and giving the High Court jurisdiction to lift an automatic suspension on consideration of the Campus Oil principles. Interestingly, the judgment which was handed down in June 2015 does not refer to Regulations 192 and 193 as the proceedings were initiated in March 2015 prior to the new Regulations being adopted.

Decision

The Court considered that the case concerned an application for an injunction based on a claim that the Commissioner had been making illegal direct awards of contracts following the expiry of the framework agreement in 2013. As such, the High Court held that this was not "an application for an order in connection with an alleged wrong taking place in respect of a procurement procedure in the course of its being conducted and which is under review. Nor is it an application for review of a decision to award a contract at the end of that procedure."

The Court distinguished OCS on the basis that it "concerned a challenge to an award of a contract before it became operative and it therefore resulted in an automatic suspension of the appointment which was challenged." The Court considered this was not the case in the present case.

The Court proceeded to apply and consider the Campus Oil test and found that the applicant had not satisfied the requirements. The injunction was, therefore, not granted.

Comment

The vast majority of procurement cases before the Irish courts relate to ongoing or recently completed tender processes and accordingly an automatic suspension will generally arise on initiation of proceedings unless the contracting authority has concluded the contract. With the adoption of Regulations 192 and 193 of 2015, the High Court is now obliged to apply the Campus Oil test in respect of applications to lift automatic suspensions and accordingly the test will be the same for cases falling outside Regulation 8.