Paschal Donohoe (Dublin Central, Fine Gael)
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I propose to take Questions Nos. 40 and Question No. 70 together.

Legal Provision

Public procurement rules in Ireland are governed by the four principal EU Procurement Directives and corresponding national legislation. The relevant Directives are:

2009/81/EC (defence and security)

2014/23/EU (concession contracts)

2014/24/EU (public contracts)

2014/25/EU (utilities)

For specific indictable criminal offences, mandatory exclusion grounds apply to public procurement procedures under these Directives where a concerned economic operator has been convicted, by final judgment, in a Member State. The procurement Directives specify the list of such offences. These are confined to convictions applied under relevant legislation specific to:

–participation in organised crime

–corruption

–fraud

–terrorist offences or offences linked to terrorist activities

–money laundering or terrorist financing

–child labour and other forms of trafficking in human beings

There is no provision in the Procurement Directives for the application of exclusion measures in relation to war crimes, crimes against humanity or genocide.

Exceptions

The specified mandatory exclusion provisions are subject to exceptions where an economic operator has taken what is termed ‘cleansing’ measures by which it may provide evidence to the public contracting body sufficient to demonstrate its reliability despite the existence of a relevant ground for exclusion.

Where such evidence is considered as sufficient by the public contracting body, the economic operator concerned must not be excluded from the procurement procedure.

The latter would not apply where a final judgment excluded participation in procurement or concession award procedure and for a specified period of exclusion.

Where a period of exclusion has not been set by final judgment, the maximum period for mandatory exclusion does not exceed five years from the date of the conviction by final judgment.

Russian Sanctions

Following the Russian invasion of Ukraine in February 2022, EU Regulation 2022/576 included a prohibition on the award and continued execution of public contracts and concessions with Russian nationals and entities or bodies established in Russia.

Public bodies are prohibited from awarding any contract to a Russian national, companies, subcontractors, entities or bodies established in Russia companies and entities directly or indirectly owned for more than 50% by such persons and any existing relevant contracts were to be terminated.