Tuesday, 12 February 2019
Comptroller and Auditor General (Amendment) Bill 2017: Second Stage [Private Members]
I am a little confused on the Government's position on the Bill, given the controversy we have just gone through about overruns and the potential impact an overrun of €450 million will have on the Exchequer. I do not want to get into a blame game because I want to concentrate on the Bill. However, I agree with my Fianna Fáil colleagues that by abstaining on the Bill, the Government is sending completely the wrong message. Sinn Féin and Fianna Fáil have huge differences on how we should approach the issue, but I am more than willing to work with it when it brings forward a proposal to try to address some of the concerns expressed and rectify them. I hope it will do the same if we bring forward proposals. However, I would have thought the Government would be falling over itself to work with Opposition parties to try to restore some confidence in the procurement process employed by the State. Abstaining on this legislation sends completely the wrong message.
We will be supporting the Bill, but I have one small concern about an issue the Minister of State referenced in regard to section 9A(2). He said the Bill would confer no new powers on the Comptroller and Auditor General. I disagree. Section 9A(2) will confer an implicit new power on the Comptroller and Auditor General because it will compel him or her - in this case, him - to examine any cost overrun on a project. It is my understanding that currently the Comptroller and Auditor General has no implicit power to examine cost overruns, whereas the Bill states that if there are cost overruns, the Comptroller and Auditor General should carry out an audit and lay a report before the Houses. For me, that is a new power.
I have a slight concern about the final part of this section which concerns the power to be given to the Minister to prescribe the regulations and conditions by which such an examination would be carried out. The role of the Comptroller and Auditor General is a constitutional one. I am not 100% certain and would like further legal advice on whether this provision will impinge on his powers in giving powers to a Minister to direct him on how he should carry out particular audits. Without doubt, a new power is being bestowed on the Comptroller and Auditor General in what is being proposed in the Bill which we will support. We will deal with that aspect on Committee Stage. However, to suggest, as the Government does, that it does not even want it to get to Committee Stage beggars belief, given everything that has happened in recent weeks. We should all be working together on whatever proposals are brought forward, from whatever side of the House, to try to improve the procurement process.
One of the things that has been highlighted in recent weeks is the deficiency in the procurement process which is not up to standard. We are in a situation where the Government is almost compelled to accept the lowest bid, regardless of how low it is, for fear of ending up on the steps of the Four Courts. That is not a good way to deal with procurement and the issue has to be addressed. I raised it last week at the health committee when I questioned the Secretary General and the Minister about what are known in EU regulations as abnormally low tenders and how they are dealt with by a number of European counterparts. Other countries define in legislation what an abnormally low tender is, which gives them the power to disqualify the lowest bidder without fear of recourse to legal challenge because it is dealt with in statutory law.
The other issue which baffles me is that when a contract is put out to tender and bids come in, the State cannot look at the past performance of any contractor who is bidding or take into account its reputation. I had this confirmed today at the finance committee. The State is prohibited from assessing it in assessing the tender before it. That is wrong and the issue needs to be addressed and, of course, it can be. There are EU procurement guidelines which deal with all of these issues, but we have chosen to ignore them. That is the reality. We deal with procurement under a number of statutory instruments which transpose the regulations by way of secondary legislation. We need to have a complete review of the regulations to see if we can place them on a statutory footing. We have published a Bill tonight to help the Government to do this. Our Bill defines what an abnormally low tender is and the process which should be undertaken if one is received. There would be an onus on the contracting authority to examine the tender and bring in the contractor to go through all of the figures. If there was a genuine belief the tenderer could not fulfil the contract, the State would have the scope and powers to exclude the tender without fear of recourse to a legal challenge.
The Bill also touched on past performance and reputation. I refer to the regulation of tenders Bill 2019, which I will move on First Stage next week. I hope to get the support of Fianna Fáil and I remain optimistic in that regard. It is a genuine attempt by us, as tonight's Bill is by Fianna Fáil, to try to address some of the genuine concerns that exist.
While the Bill gives powers to the Comptroller and Auditor General to examine cost overruns, we must get to a situation where we do not have cost overruns because we can nip them in the bud at the tendering and procurement stage. That is what our Bill aims to do.
I will not name any contractor or project but we cannot have a situation where a contractor consistently underbids for some of the major State contracts and ends up costing more in some cases than the highest bidder. That cannot continue because it is costing us hundreds of millions. In this case, it has cost us €450 million. That needs to stop. The Fianna Fáil Bill that is proposed is a genuine attempt to try to address some of the concerns. We will support it in good faith.
I am disgusted at the lack of support for the Bill from the Government. I do not understand why it is not lending its support to it. Even if the Government has concerns about the Bill, it should support it. We should be united in our voices in saying that we want to address the issue once and for all, regardless of who is in government. Given the circumstances, it was childish of the Minister of State, Deputy D'Arcy, to hurl accusations at Fianna Fáil about the overruns it presided over while in government. We must get away from that. The public does not care whether Fine Gael is in government, we are in government or Fianna Fáil is in government. An overrun is an overrun and the public ends up paying for it in the long run, and that needs to stop because people are losing faith in the process. We need to fix it now. We have a very small window of opportunity.
I urge the Minister of State to be more open to suggestions from other Opposition parties than he is tonight on the Fianna Fáil Bill. I ask him to consider supporting the Bill on Thursday during the voting bloc and allow it to go to Committee Stage. We can address on Committee Stage all the concerns he has raised. I share one of the concerns he outlined, but opposing the Bill is sending out the wrong message if the House cannot even bloody agree to send to Committee Stage the very first legislation that is introduced to try to address properly the issues we have been discussing in recent weeks.