Billy Timmins (Wicklow, Independent)
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102. To ask the Minister for Public Expenditure and Reform the extent to which post-tender negotiation takes place in respect of contracts awarded through the public procurement process, despite this practice contravening the Irish rules for public procurement (details supplied); if during the lifetime of the current Government any contracts awarded through the public procurement process were contingent on, or awarded as a result of, successful post-tender negotiation; if the results of these negotiations materially disadvantaged other tenderers who would otherwise have been the winning bidder; and if he will make a statement on the matter. [24097/15]

Brendan Howlin (Wexford, Labour)
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Public procurement is the acquisition, whether under formal contract or not, of works, supplies and services by public bodies. National rules governing public procurement must comply with the relevant EU, WTO and national legal requirements and obligations. In general under EU law, public contracts above a certain value must be advertised EU-wide and awarded to the most competitive tender in an open and objective process.

As set out in the guidance to which the Deputy refers post-tender negotiation is prohibited under EU rules as it diminishes transparency and can give rise to abuses in the tendering process. The system is designed to operate on the basis that tenderers submit their most competitive bid in response to the specifications set out in an RFT. It is not envisaged for example that a contracting authority using an open or restricted tendering procedure would seek to negotiate either price or elements of the tender post the tender closure date. 

Where a negotiated procedure is used, this must be done strictly in accordance with either Article 30 (with prior publication of a contract notice) or Article 31 (without prior publication of a contract notice) of EU Directive 2004/18/EC.  This is a separate procedure to an open or restricted tendering procedure and it can only be used in very limited and defined exceptional circumstances.

I am not aware of any post tender negotiations used by contracting authorities that were in breach of EU Directive 2004/18/EC which materially disadvantaged other tenderers that would otherwise have been the winning bidder. If the Deputy has any concerns or information regarding such cases, I would encourage you to raise the matter directly with the relevant contracting authority or enforcement body.