Good practice in public tenders for translation and interpreting services

Author: Wojciech Wołoszyk – lawyer-linguist, co-founder and CEO of IURIDICO Legal & Financial Translations, court expert on legal linguistics, member of the board of POLOT Polish Association of LSPs responsible for relations with a public sector and public procurement market

Exercising the competence referred to in Article 154 point 17a of the Act of 29 January 2004 – Public Procurement Law (Journal of Laws 2019.1843, consolidated text of 2019.09.27) the President of the Polish Public Procurement Office in 2016 published the Action Plan covering its tasks concerning the preparation and dissemination of sample public contract templates, regulations and other documents used in awarding contracts[1].

The analyses carried out by the Public Procurement Office show that the issue of sample documents that can be used in public procurement procedures is of great interest to public procurement market participants. The Plan also takes into account the activities of the President of the Office in the area of creating and disseminating good practices applied in the award of public contracts, which are then published on the website of the Public Procurement Office.

The competence to prepare model documents correlates with the obligation of the President of the Office to ensure compliance with the principles of the public procurement system (Article 154 point 11 of the PPL Act) and the competence to strive for uniform application of procurement regulations taking into account the case-law of courts and the Constitutional Tribunal (Article 154 point 13 of the PPL Act). The templates of documents prepared by the President of the Office have not only educational but also practical value, as they may offer assistance in public procurement proceedings, e.g. they may be used in preparing and conducting proceedings (Article 36c of the PPL Act).

In light of the abovementioned competences of the President of the Office, it is also important to publish good practices applied in the award of public contracts. They may not only serve as a model for the proper application of public procurement law but also indicate practical ways of using certain statutory regulations in the proceedings. In this context, it is extremely important to cooperate with industry organisations associating contracting authorities and economic operators, which have the best practical knowledge of the problems occurring in public tenders conducted in a given market segment and the possible detachment of some of their aspects from the market and technical realities, professional standards, organisational or logistic constraints.

One of the most frequent partners of the PPA in working on good industry practices are employer organisations. In the translation industry, such an organisation has not yet existed. However, the need to create it has been visible for at least several years. On 2 October 2019, POLOT Polish Association of Language Services Providers (LSPs) with its registered office in Warsaw was established.

One of the main objectives of the founders of the POLOT Association was to undertake actions aimed at developing and agreeing with the PPL a code of good practices in public tenders for translation and interpreting services[2]. At a later stage, it is assumed that the code of good practice will be published on the PPL website[3].

However, why did representatives of the translation industry consider that there is a need to develop such a document and to promote it in the public sector?

The translation is one of the most undervalued services purchased by public sector bodies. This is primarily due to the lack of knowledge of the conditions and individual stages of the translation process, the tools and technologies used, as well as the diversity of services available on the market.

The aim of developing the code is to promote good procurement practices enabling public sector clients to gain access to the highest quality language services while providing reliable and professional contractors with the widest possible access to the public procurement market for translation services.

Today’s Polish market situation requires far-reaching changes. Only a few of the most experienced translation service providers are still determined enough to seek cooperation with the public sector. Public procurers, due to the lack of appropriate tools, knowledge and understanding of the conditions affecting the translation process and its costs, discourage many of these contractors from taking the trouble to prepare their offers in a responsible, reliable manner and taking responsibility for the quality of the services offered and the confidentiality and security of data.

One of the biggest problems in public tenders for translation services is the complete incomparability of the offers as a consequence of the tenders organisers’ unfamiliarity with the rules governing the translation process.

The Code of good practices will cover the following issues:

1. Criteria for the evaluation of tenders, and in particular quality criteria specific to translation services. Rules for conducting and evaluating sample translations. Sample translations should be of key importance in tenders for translation services. In view of the obligation to adopt non-price criteria for the evaluation of tenders, in particular for complex contracts, a sample may prove to be a remedy for the contracting authority’s problems in seeking to obtain the best quality product and, at the same time, the most economically advantageous one in the long term. The sample allows the contracting authority to assess the real capacity or capability of the entity concerned. In this respect, the Polish public sector should follow good practices in conducting tenders adopted by the EU institutions.
2. Knowledge and experience – the most effective ways of formulating the conditions for participation in the procedure in terms of technical and professional capacity. Specific conditions for economic operators – translation agencies and for team members – translators and proofreaders.
3. The contracting authorities commonly bind the conditions of participation in the tender procedure in terms of technical and professional capacity to the value of the service provided. In the translation industry, such terms and conditions are detached from the reality of the market. The only objective and comparable measure is the number of pages translated. The range of rates is enormous and the value of the service provided is not really translated into the experience gained. The number of pages translated is a uniform measure of experience for all contractors.
4. The division of the contract into lots, with particular emphasis on the division into translation and interpretation, as two different types of services performed by different teams of professionals.
5. Quality certification – application of the quality standards PN-EN ISO 17100:2015 (written translations), ISO 18587:2017 (machine translations and post-editing), ISO/FDIS 20771 (legal translations, standard in preparation, planned date of publication – mid-2020).
6. Ineffectiveness of abnormally low price check procedures. Infringements of the lowest remuneration regulations. When carrying out explanatory procedures on the abnormally low price, contracting authorities do not have a benchmark for assessing their reliability and often take as proven statements that are disconnected from reality and industry standards in terms of remuneration, the inclusion in the offered rates of all service elements required by the contracting authority, efficiency and using CAT tools.
7. Translation memories, rights to translation memories – contracting authorities commonly ignore the existence of CAT software and creation of translation memories, which as databases constitute a separate product of the translation service. The rights to these databases and their further use should be regulated in public contracts. For participation in European language projects (eTranslation, ELRC, NEC TM DATA), formal regulation of these issues is necessary. It is worth noting, for example, that the acquisition of translation memories should be one of the elements of the obligation to re-use public sector information.
8. Specific conditions for translation – stages of the translation process and their separation, preparation of materials for translation, principles of verification and quality control.
9. Conditions specific to interpreting – use of 4hrs units as a billing unit, provision of conference and simultaneous interpreting by at least two interpreters. Application of guidelines developed by the Polish Association of Conference Interpreters.
10. Language technologies – principles of using CAT (computer-aided translation) tools, distinguishing between CAT and MT, creating and maintaining translation memories, principles of proper use of machine translation and post-editing.
11. Use of machine translation (MT) – automatic rejection of the possibility of providing services to the public sector using MT (most often referred to as „automatic translators” in the tender specifications) is a manifestation of a lack of knowledge of the industry standards and the current state of technology. The European Union supports the development and use of machine translation in the translation process for public administration. Often introduced restrictions on the use of „automatic translators” date back to the times when the use of such a tool usually led to a quality disaster. Nowadays, these provisions are not only outdated but also defunct, because CAT tools integrated with MT are a commonly used solution. However, the professional use of machine translations is governed by specific rules and requires the use of specialized tools. The use of inappropriate solutions may lead to cyber-security incidents, violations of regulations on personal data protection and protection and security of classified information. The complete rejection of the use of machine translation is a dead end. Instead, contracting authorities should focus on eliminating the real risks involved.
12. Analysis of the providers’ terms and conditions for the provision of machine translation services available in free versions – with a view to assessing their usefulness and admissibility of use in commercial applications, processing of personal data and protection of classified information, cybersecurity. The issue of copyrights to specialized and certified translations – against this background, wrong views and opinions prevail in the Polish public sector. The issue of recognising specialized and certified translations as copyrighted work has recently been the subject of a Supreme Court judgment of 19 December 2019. (case file no: I UK 409/18). This issue is of great importance for the rules for settling the remuneration for translation services, as well as for the provisions of contracts and the respect of the translator’s moral rights to his/her work.
13. Restrictions in organizing tenders for certified translations resulting from the provisions of the Act of 25 November 2004 on the profession of a sworn translator, which are often violated by some administrative bodies[4] .
14. Duration of the contract – Public procurement procedures for the award of translation services contracts using quality criteria in the form of translation samples are quite lengthy. The contracts are of a framework nature. The conclusion of one-year contracts is an inefficient solution. In the EU institutions public tenders, it is common to conclude contracts for four-year periods (one-year contracts, renewable for three consecutive one-year periods).
15. Preparation of source materials for translation, management of language resources and terminology – principles of good cooperation between the client and the translation agency contributing to the quality of services provided and terminological consistency.
16. Conclusion of contracts with a larger number of contractors in the case of clients with significant demand for translation services. Dynamic ranking and continuous quality competition between the contractors.

The concept of developing a code of good practices was based on the previous publications of the author of this article covering some of the problems stated above, which were noticed by the Public Procurement Office and published on the Forum of Industry Practices on the Office’s website. Those publications resulted from observations of European tenders for translation services and practical experience in cooperation with EU institutions. In addition, the urgent need for expert support for the public sector from the translation industry has arisen as a result of the activities undertaken by the European Union to promote language technology and the collection and reuse of language resources at the level of public administrations in the Member States under the ELRC and NEC TM DATA programmes[5]. The full participation of the Polish administration in these projects and the benefits they bring (improvement of the delivery of translation services, increase in quality, reduction of costs) requires a significant increase in technological competence on the part of the public sector players. Relying solely on solutions implemented by contractors is far from sufficient. It is also required to implement appropriate software and build language resources in the form of translation memories on the part of the contracting authorities. Great interest in this subject was visible at the dissemination meeting of the NEC TM DATA project held on 14 January 2020 in Warsaw for countries from Central and Eastern and Northern Europe.

The Code is currently in preparation and subject of internal discussions within the POLOT Association. We invite public sector entities to contact us and submit their comments, needs and ideas, which we will be able to take into account.

The publication of the first version of the Code of Good Practices in public procurement procedures for translation services is planned for the end of the first quarter of 2020 on the POLOT Association website.

[1]  Available only in Polish:

https://www.uzp.gov.pl/__data/assets/pdf_file/0025/33388/Wzorcowe_dokumenty_Plan.pdf

[2] https://polot.org.pl/en/good-practices-in-public-procurement/

[3] https://www.uzp.gov.pl/baza-wiedzy/dobre-praktyki

[4] More about this problem in the article: Conducting public tenders for certified translations in accordance with the Act on the profession of a sworn translator, “Zamawiający. Zamówienia Publiczne w praktyce”, January – February 2020: Link

[5] The NEC TM DATA project aims to promote the use of CAT tools in national public administrations and to create a pan-European platform for the exchange of translation memories produced as a result of public contracts execution. The project is described in more detailed manner in the „Zamawiający. Zamówienia Publiczne w praktyce” March-April 2019: Link