Alice-Mary Higgins (Independent) | Oireachtas source

I move amendment No. 1:

In page 8, line 37, to delete “shall” and substitute “may”.

Amendments Nos. 1 and 2 do not directly conflict with each other but can be combined in a set of three ways. Like Lego pieces, we will see how best to fit them together.

Section 6 deals with the guidelines for social considerations. These are areas of State policy on things like emissions reductions, our obligations under the United Convention on the Rights of Persons with Disabilities, the Istanbul Convention and Irish Sign Language recognition. The State has many concrete policy areas and goals.

Circulars have been issued and I wish to refer to the extremely useful Dutch guidelines as they state what goes into that place. The Netherlands has avoided legal challenges due to having clear guidelines on how things are reflected. Another reason is having a list of things to be aware of and consider at the design point. I have discovered that a lot of procurement legislation often tries to deal with social clauses, which are attached to a contract after it has been awarded. My amendments seek to go a little higher and design the criteria on which the allocation of a contract will be based.It is also a step further up in terms of design. For example, if a playground is being designed, the contracting authority would not just state it is a contract for a playground, but also that it is doing a request for tenders for a playground that will also promote public goals in respect of inclusion and accessibility and will, for example, reflect the biodiversity or pollinator goals the State may have. By ensuring provisions are included early on, and we are not saying they have to be put in, we allow a contracting authority to make the initial request for tenders better.

Schoolbooks and library books are other examples. One of the instances where there was concern across the House was when the contract for library books was bundled into one very large contract that went to one company, whereas if there were, for example, provisions to support a local reading culture, a different approach would have been taken to how library books might have been purchased on a national level. Just transition, which will be very important, is another example. Where we have contracts in which one of the goals is just transition, and some of the funding is coming from just transition funds, it needs to be very clear that such factors will be factored into the design of that contract. I can give examples of where that did not happen.

In that context, these guidelines are a very powerful and useful resource for contracting authorities to design a better contract at the beginning. When they do so, that allows and justifies because the criteria that are attached have to relate to the performance of the contract. It is almost like setting the mission and the criteria then have to relate to delivering on that mission. That is where these guidelines can be incredibly powerful and useful. They have the potential to deliver the intention of the 2014 directive, which was around the achievement of these core public policy goals through public procurement as a tool and not just a shopping list.

However, I recognise that because these guidelines deal with multiple areas that may be quite wide, and the needs of particular contracting authorities may be different, the language in section 6(3) of the Bill could be too prescriptive. At present, it states that "Contracting authorities shall comply with any guidelines issued under subsection (1)", but there are of course different contracting authorities. Some guidelines will be relevant to some contracting authorities, while other guidelines will be relevant to other contracting authorities. I am conscious that section 6(3) is framed too widely at present and is too hard an obligation in that regard.

I have proposed three ways we can address this. I am interested in what the Minister of State believes is best. We could address it by stating contracting authorities "shall consider" any guidelines. That is the culture change and the requirement that there would be consideration of the guidelines. It creates an obligation but it is only an obligation to consider. That is one process. The other approach would be to use the wording "may comply". Again, it is stating contracting authorities might comply. It puts compliance into the Bill but the wording is "may comply", which recognises there may be exceptions where complying with a particular guideline might not be appropriate. The third approach would be to go with "shall consider " or "may consider", which is very weak but would at least indicate authorities may consider these guidelines. It loses a little of the strength in that we want people to at least look to the guidelines when a tender is being designed, but we would still be in a situation where they are being provided with a better tool through strengthened guidelines. Those are the three approaches. That is why I have those two words because they can be combined in four different ways. I am very open because I recognise this sentence is currently too narrow and too restrictive. I am open to those three approaches. My preference is probably for "shall consider". That creates an obligation, although only one of consideration. I am open to the Minister of State's thoughts on this.