Ivana Bacik (Dublin Bay South, Labour)
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290. To ask the Minister for Public Expenditure and Reform if the commissioning of services other than by public tender is an option for public bodies provided for under EU procurement requirements; and if he will make a statement on the matter. [43683/21]

Michael McGrath (Cork South Central, Fianna Fail)
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All Irish public bodies are obliged to spend or invest public funds with care, and to ensure that optimal value for money is obtained in accordance with the Public Spending Code which sets out the rules and procedures to ensure that these standards are upheld across the Irish public service.

Public Procurement is governed by EU legislation and national rules and guidelines with the aim of promoting an open, competitive and non-discriminatory public procurement regime which delivers best value for money. The EU Procurement Directives were transposed into Irish Law in 2016 and 2017 under S.I. No. 284/2016 (the “2016 Regulations”); S.I. No. 286/2016 (the “2016 Utilities Regulations”) and S.I. No. 203/2017 (the “2017 Concessions Regulations”).

The procedures for public bodies, when tendering for goods and services, above and below the EU Thresholds, are set out in the Public Procurement Guidelines for Goods and Services published by the Office of Government Procurement (OGP) and are available here:

www.gov.ie/en/publication/c23f5-public-procurement-guidelines-for-goods-and-services/

These Guidelines set out the procurement procedures to be followed by Government Departments and State Bodies under National and EU rules. The guidelines are to support contracting authorities, including the Office of Government Procurement (OGP), the four key sectors (Health, Education, Local Government and Defence), individual Departments, Offices, commercial and non-commercial State bodies, and private entities which are subsidised 50% or more by a public body, when awarding contracts for goods and services.

For all works and works-related services (above and below the relevant threshold) contracting authorities should consult the Capital Works Management Framework (CWMF) available here www.gov.ie/en/service/1d443-capital-works-management-framework/# . The CWMF is an integrated set of contractual provisions, guidance material and technical procedures which covers all aspects of the delivery process of a public works project from inception to final project delivery and review.  The CWMF is for the use by contracting authorities involved in the expenditure of public funds on construction projects and related consultancy services. It includes a range of standard template documents and guidance material defining procedures to be followed for the procurement of works contractors and service providers such as architects, engineers, quantity surveyors, etc.

Contracts with estimated values equal to or above the EU thresholds must be advertised in the Official Journal of the European Union (OJEU) and awarded in accordance with the provisions of the 2016 Regulations.  There are six award procedures that contracting authorities may utilise when awarding contracts above EU threshold under the 2016 Regulations :

- Open Procedure

- Restricted  Procedure

- Competitive Dialogue

- Competitive Procedure With Negotiation

- Innovative Partnership

- Negotiated Procedure Without Prior Publication

The 2016 Regulations introduced a higher threshold procurement regime ( “light-touch” regime) for social and other specific services listed in Annex XIV of the EU Directive 2014/24/EU, which are generally considered to be of lower interest to cross-border competition .

Regulation 77 of the 2016 Regulations allows contracting authorities to reserve certain contracts for health, social and cultural services to organisations such as not-for-profit organisations which meet certain conditions, namely the pursuit of a public service mission linked to the delivery of the relevant services and reinvestment of profits in the organisation. The duration of the contract cannot be longer than three years and the organisation can not have been awarded a contract for the services by the contracting authority under this regulation within the proceeding three years.

Regulation 32 sets out an exhaustive list of limited circumstances where the Negotiated Procedure without Prior Publication may be used. The absence of a call for competition is a departure from the core principles of openness, transparency and competition and as such is a very exceptional procedure. For example, this procedure may be used for the purchase of goods and services where no tenders or no suitable tenders are submitted, in cases of extreme urgency not attributable to the contracting authority and brought about by unforeseen events, the creation or acquisition of a unique work of art or artistic performance, there is only one possible supplier or service provider, for the purposes of research, experimentation, study or development, where the contract follows a design contest.