The High Court has lifted an automatic suspension on the awarding of a contract for the supply of interpreters for the State’s immigration service and Legal Aid Board.
The suspension came into effect after a company which has been supplying interpreters for several years, Word Perfect Translation Service Ltd, brought a legal action against the Minister for Pubic Expenditure and Reform challenging the integrity of the award process.
The Minister applied to the court to have the suspension lifted.
On Thursday, Mr Justice Seamus Noonan granted the Minister an order lifting the suspension after he found that, while there was a fair issue to be tried in the case, damages would be an adequate remedy for Word Perfect should it win the case.
Conversely, he said, damages could not be regarded as an adequate remedy from the Minister’s perspective in circumstances where the issue involved matters such as immigration status and human rights of people applying for international protection and, in some circumstances, involving the security of the State.
Supplemental request
Mr Justice Noonan said Word Perfect was unsuccessful in its tender under a supplemental request for tenders for a 12-month contract in 2016. After it indicated it intended to bring a legal challenge to that process, the Office of Government Procurement (OGP) decided the process was flawed and cancelled it.
The OGP started a new supplemental request process and again Word Perfect was unsuccessful. A company called Translation.ie was the preferred bidder.
Word Perfect then brought it High Court challenge claiming, among other things, there was manifest error in a number of areas, a failure to give adequate reasons. It also expressed concerns about the integrity and transparency of the process.
Under EU Remedies Regulations, once such a challenge is brought, it acts as an automatic suspension on the awarding of the contract pending determination of the matter by the court.
Mr Justice Noonan said it was evident that for a considerable period of time, there had been issues with Word Perfect’s performance.
These included the quality of the interpretation provided, the late arrival at appointments and failure to produce ID badges by interpreters.
The OGP said these serious and ongoing problems impacted very significantly on the operation of the immigration service, particularly in relation to appeals.
OGP procurement portfolio manager, Anne Lannon, said in an affidavit there was a significant risk to the interpretation services if the suspension was not lifted, including for national security.
Minor complaints
Word Perfect said the complaints were historical, relatively minor, had been largely resolved, and had been contrived for the purpose of the legal proceedings.
The firm's director and operations manager, Agim Gashi, said in an affidavit Word Perfect had been providing services for several years and if there was any substance to the complaints, the Minister would have terminated the arrangement.
If the suspension was lifted, he said, more than 100 interpreters would become redundant and turnover would be reduced by between €500,000 and €800,000. Among the positions that would be affected were rare language interpreters, he said.
In a second affidavit, Mr Gashi said the loss of the rare language interpreters would result in a 90 per cent loss in turnover. Word Perfect would go out of business if the suspension was lifted, he said.
Mr Justice Noonan said it was somewhat surprising that “such a dramatic state of affairs”, in relation to the rare language interpreters, had entirely escaped Mr Gashi’s attention when he swore the first affidavit which ran to some 38 pages.
The judge said he was driven to the conclusion that Word Perfect had not discharged the onus of establishing that damages would not constitute an adequate remedy should it win its legal challenge.
He was satisfied the balance of convenience lay in favour of the Minister and that the public interest clearly favoured having the best possible interpretation services available to immigration bodies.