Alice-Mary Higgins (Independent) | Oireachtas source

I might clarify a point before the Minister of State comes back in. As I have said, section 3(4)(a) addresses the question of the price-only approach. Perhaps there are concerns regarding section 3(4)(b), which specifically relates to larger-scale projects. Some €165 billion is due to be spent on the national development plan. Section 3(4)(b) relates to large contracts that are over the EU works threshold, which is about €5.4 million.Again, we are talking about large-scale projects. The provision is that they would require a minimum of 50% quality weighting unless there is a declaration explaining why they are choosing not to apply such a weighting. It is important to note that this is allowed under EU law and there is case law that demonstrates that. One relevant case is Irish Waste Services v. Northern Ireland Water Limited and another, which was heard in the European Court of Justice, which is the highest court in respect of this, is the EVN AG and Wienstrom case. In the latter case, the European Court of Justice concluded that a contracting authority is free to choose both the award criteria and their weightings. There is case law from the highest level, at the European Court of Justice, which makes it very clear that the weighting can be chosen. In that regard, that does not preclude the setting of a minimum threshold.

My Bill does not interfere with the discretion of an authority to choose the weighting but it allows for a declaration which explains the reasons for the choice in respect of it. Again, if a public or contracting authority has a €10 million project and decides to do it with a 75% weighting on cost and only 25% on quality, it can do so but it must explain why. An example of how that might be relevant is the national children's hospital, where 75% of the decision was based on price and only 25% on quality criteria. Of course, we know that project has ended up costing close to €1 billion in supplementary claims and other costs because it was not addressed at the time. That would be an example whereby, if this Bill had been in place, it would still have been an option to do that but we would at least have a very useful record explaining exactly why the contracting authority chose to go with 75% price and only 25% quality. That would be useful in terms of accountability and transparency.