Written answers

Wednesday, 17 June 2015

Department of Public Expenditure and Reform

Public Procurement Regulations

Photo of Billy TimminsBilly Timmins (Wicklow, Independent)
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108. To ask the Minister for Public Expenditure and Reform if any measures are utilised to ensure that competing parties in the public procurement process are compared on a like-for-like basis in respect of standards in workplace safety and employment regulations, notwithstanding that a competing party may use inputs from low-cost countries outside of the European Union in the supply-chain process; and if he will make a statement on the matter. [24103/15]

Photo of Brendan HowlinBrendan Howlin (Wexford, Labour)
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The main purpose of the EU public procurement regime is to open up the market and to ensure the free movement of supplies, services and works within the EU having regard to Treaty of Rome principles including transparency, proportionality and equal treatment. This is the rationale that shapes the detailed rules (Directives) governing the regime.

The enforcement of employment and health & safety legislation apply equally to public and private sector contracts. Consequently, it is not for me as Minister of Public Expenditure and Reform to set out a separate policy for public sector contracts. My colleague Mr Richard Bruton TD, Minister for Jobs, Enterprise and Innovation has overall policy responsibility for employment rights and the area of health and safety in the workplace. The National Employment Rights Authority (NERA) is responsible for enforcing minimum statutory employment rights and entitlements in the State and, in undertaking that role, carries out a range of functions including the provision of employment rights information and the inspection of employment related records. NERA operates a system of risk based inspections in sectors where there are identifiable risks. Inspections are also carried out in response to complaints received and routine inspections are undertaken as a control measure. It is a condition of any contract entered into by a public authority with a private sector entity (other than for operations that may reasonably be considered as small scale) that the entity is required to provide access to certain information. This information may assist the authority to assess compliance with employment legislation consistent with the requirements of EU and national law. While the Health and Safety Authority (HSA) has overall responsibility for the administration and enforcement of health and safety at work in this jurisdiction. The HSA monitors compliance with legislation at the workplace and can take enforcement action up to and including prosecutions.

Public procurement procedures require applicants to meet certain standards when applying for public contracts. The criteria upon which contracting authorities may exclude applicants from the award procedure of public contracts are set out in Regulation 53 of SI 329 of 2006 European Communities (Award of Public Contracts) Regulations 2006 and Article 45 and Recitals (34) and (43) of 2004/18/EC, the EU Directive on the co-ordination of procedures for the award of public works contracts, public supply contracts and public service contracts. Before an applicant, in relation to certain breaches is excluded, the applicant may make a case and provide supporting evidence as to why it should not be excluded. The contracting authority must consider this evidence before deciding whether to exclude or include an applicant.

In qualifying for inclusion in tender competitions for public contracts, applicants must submit signed declarations stating that none of the circumstances outlined in Regulation 53 of SI 329 or Article 45 of 2004/18/EC apply. The OGP has made provision within its standard template suite of tender and contract documentation to address situations where breach of employment or health and safety (or other relevant) legislation comes to its attention in the context of contract administration. Discharge of fees is subject to compliance with terms and conditions of contract which includes legislative compliance. Similarly material breach of such terms may trigger a right of termination.

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