Brian Stanley (Laois-Offaly, Sinn Fein)
Link to this: Individually | In context | Oireachtas source

220. To ask the Minister for Public Expenditure and Reform his views on whether a company (details supplied) will continue to be able to bid for State contracts while the Australian government investigates it for leaking confidential state tax documents to its own clients; and if he will make a statement on the matter. [23913/23]

Paschal Donohoe (Dublin Central, Fine Gael)
Link to this: Individually | In context | Oireachtas source

Public procurement in Ireland is governed by EU Procurement Directives and National Legislation. Public bodies are obliged to act in accordance with these rules and accordingly must respect the general principles of EU law including non-discrimination, the free movement of goods and services, equal treatment, and proportionality and transparency in awarding public contracts. They must also ensure that procurement transactions and decisions are fair, equitable and deliver value for money.

The criteria upon which contracting authorities may exclude applicants from the award procedure of public contracts are set out in the Directives and in corresponding national legislation. In addition, information on the circumstances in which a contracting authority may exclude applicants can be found in Public Procurement Guidelines for Goods and Services published by the Office of Government Procurement. These guidelines were first published in July 2017 and updated in January 2019 and are available from the OGP website (www.ogp.gov.ie).

Certain mandatory exclusion grounds apply to all public procurement competitions. Mandatory grounds for exclusion include where a candidate/entity has been convicted of a criminal offence including organised crime, corruption, fraud, money laundering, terrorism, child labour and human trafficking. A failure to comply with tax and social welfare obligations are also mandatory grounds for exclusion from a competition. A conviction can relate to a candidate, any member of the administrative, management or supervisory body of the candidate and any person with powers of ‘representation, decision or control’ over the candidate.

Where a contracting authority becomes aware at a later stage in the process that a tenderer is subject to any of the mandatory Exclusion Grounds, the 2016 Regulations also allow for exclusion of the tenderer during the procurement procedure.

Under the EU Procurement Directives, contracting authorities also have discretion to exclude candidates for competing in a public procurement competition. Discretionary grounds include where the contracting authority can demonstrate violations of environmental, social and labour law. In addition, where a contracting authority can establish professional misconduct, bankruptcy, poor past performance along with attempts to distort the competition, commit serious misinterpretation or unduly influence the decision making process, they can disqualify a candidate from a procurement competition.

Where there is a conviction under one of the mandatory grounds for exclusion, a bidder is excluded from competing for public contracts for a period of five years from the date of the relevant conviction. Exclusion on the basis of voluntary exclusion grounds is for a period of three years from the date of the relevant event.

However, suppliers must not be excluded if they have provided sufficient evidence of reform. A bidder has the opportunity to provide evidence at tender stage of “self-cleansing” measures and must not be excluded if such evidence is considered sufficient. Such evidence could include, for example, payment of compensation in respect of any damage caused, active cooperation with investigating authorities by clarifying the facts and circumstances, implementation of technical, organisational or personnel measures that are appropriate to prevent further misconduct. The self-cleansing option cannot, however, be extended in the case of exclusion from participation in procurement procedures because of a final court judgment.

There are also derogations from the application of the mandatory exclusions for overriding requirements in the public interest, e.g. the provision of vaccines in an emergency public health scenario. A contracting authority may also disregard tax and social security obligation breaches where the exclusion would be clearly disproportionate i.e. where only minor non-payment amounts are involved. The exclusion of bidders on grounds other than those set out in the regulations is open to legal challenge by the excluded bidders.