Marian Harkin (Sligo-Leitrim, Independent) | Oireachtas source

I thank Deputy Gogarty for raising this matter and I am responding on behalf of the Minister. Public procurement is governed by EU and national rules. The aim of these rules is to promote an open, competitive and non-discriminatory public procurement regime which delivers transparency and value for money outcomes, which the Deputy referred to. With respect to public works, the capital works management framework, CWMF is the structure that has been developed to deliver the Government’s objectives regarding public sector construction procurement reform.

The CWMF suite of contracts contain clear requirements with respect to performance and delivery, whereas the project-specific aspects such as scope, design and technical specifications are matters for the contracting authority to determine. The CWMF also provides a suite of guidance material covering all aspects of project delivery. Other contracts, such as the NEC, might be used on larger infrastructure projects.

An applicant's eligibility to participate in public procurement competitions must be determined in a manner that meets the principles of transparency, non-discrimination and mutual recognition. Criteria for qualitative selection are defined in the EU procurement directive.

When carrying out procurement procedures, contracting authorities already 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. However, suppliers must not be excluded if they have provided sufficient evidence of reform, for example, payment of compensation, co-operation with investigating authorities and changes in organisation or personnel. The management of the tendering process for a public contract including the application of certain exclusion grounds and selection criteria is a matter for each contracting authority. It is the responsibility of each contracting authority to ensure that tenderers comply with all the requirements of the process.

There are a number of elements already present in CWMF contracts that provide contracting authorities with the ability to manage poor performance. A consistent contract management regime is critical and clearly defined milestones should be set down for evaluation purposes. The public works contracts require payment to be made on a monthly basis for work completed to the standard specified in the contract. Where the works completed do not meet the required standard, the value of the defective work may be deducted from the payment due until the matter is rectified.

Many of the larger projects also carry performance bonds which may be called upon in the event of a breach of contract. Persistent failure to comply with an instruction under the contract is a breach and may result in the bond being called upon to pay for the work necessary to make good a defect.

Deputy Gogarty mentioned one or two companies but he will understand that I cannot comment on particular companies. The rules apply to all companies.

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