Patrick O'Donovan (Limerick County, Fine Gael) | Oireachtas source

I thank Deputy Boyd Barrett. Public procurement is governed by EU legislation and national rules and guidelines. The aim of these rules is to promote an open, competitive and non-discriminatory public procurement regime which delivers best value for money.

When carrying out procurement procedures, contracting authorities have discretion to exclude tenderers from competing in a public procurement competition for reasons set out in Regulation 57 of SI 284 of 2016 – European Union (Award of Public Authority Contracts) Regulations 2016. This includes poor past performance where the tenderer has shown significant or persistent deficiencies in a prior public contract which led to termination, damages or other comparable sanctions.

The public procurement system operates at its optimum where the evidence presented to demonstrate compliance is independently verified. Otherwise, the contracting authority must rely on its own expertise and, in some cases, investigative powers to establish a tenderer’s bona fides. This can lead to inconsistencies in the administration of tender competitions.

The tax clearance system operated by the Revenue Commissioners is an example of the type of independently verified compliance mechanism that has operated successfully in ensuring that those who do not meet their tax obligations are excluded from the award of public contracts. Determining compliance with certain other legal requirements may require the input of the relevant enforcement body such as the Health and Safety Authority, the Workplace Relations Commission and Building Control, to name but three.

When making a submission a tenderer must consider whether any of the exclusion grounds listed in the procurement documents apply to them. Should any of the grounds apply, they must advise the contracting authority accordingly. Before a tenderer is excluded regarding certain breaches, they may make a case and provide supporting evidence as to why it should not be excluded. The contracting authority must arrive at a decision based on evidence rather than hearsay or dissatisfaction and should take the principle of proportionality into account in its deliberations.

The monitoring of public works contracts is also important to ensure that contractors continue to meet their legal and contractual obligations during the performance of the contract. A consistent contract management regime is critical and clearly defined milestones should be set down for evaluation purposes.

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