Paschal Donohoe (Dublin Central, Fine Gael)
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I have been informed by the National Development Finance Agency (NDFA) that Spain’s National Commission for Markets and Competition published a resolution (Resolución Obra Civil 2 S/0021/20) on 5 July 2022, imposing fines for infringement of Spanish and European competition laws on six Spanish construction companies.

The NDFA understands from correspondence with one of the affected Spanish companies, Obrascon Huarte Lain S.A. (“OHL”), that the Resolution is being appealed to Spain’s National High Court by OHL and, pending the appeal, OHL has been granted a stay of the Resolution which suspends the administrative sanctions, including any prohibition on entering into public contracts.

The NDFA has procured 10 PPP contracts which are fully complete and are now operational. Of the 10 projects procured, two projects were awarded to consortia that included one of the six Spanish construction companies. OHL holds a small equity stake as part of the consortium for the Social Housing Bundle 2 project and Fomento de Construcciones y Contratas S.A. (“FCC”) was part of the consortium for the Technical University Dublin, Grangegorman project.

The NDFA has two PPP projects currently in procurement (Higher Education Bundle 2 and Social Housing Bundle 3) and one PPP project in construction (Higher Education Bundle 1).

One of the contractors named in the Resolution, OHL, is currently involved as one of the shortlisted candidates in the procurement of the Social Housing Bundle 3 PPP project.

Separately, the NDFA note that OHL is part of a joint venture with Ganson Building and Civil Engineering Contractors Ltd. that has been awarded a place on the Design & Build (D&B) Contractor Framework following the NDFA tender competition for the second traditionally funded Schools Building Programme (also known as the Devolved Schools Building Programme or “DSBP2).

NDFA procurements, whether PPP or Exchequer Funded, are conducted in accordance with the European Union procurement regulations as transposed into Irish Law under S.I. No. 284/2016 - European Union (Award of Public Authority Contracts) Regulations 2016.

Regulation 57 of the Procurement Regulations enables a contracting authority in certain circumstances to exclude bidders from procurement procedures for matters such as:

• corruption (Regulation 57(1)(b));
• grave professional misconduct (Regulation 57(8)(c)); and
• agreements with other economic operators aimed at distorting competition (Regulation 57(8)(d)).

In deciding whether or not to invoke such exclusionary rights in any particular case, a Contracting Authority must consider all relevant factors, including any remedial measures undertaken by a bidder. In this regard, OHL provided details to the NDFA of certain remedial measures it has taken with a view to demonstrating the measures the company has taken to safeguard against the future occurrence of offences such as those alleged in the Resolution.

Based on relevant information provided and on legal advice received to date, noting in particular that no final conviction of OHL has taken place and that OHL appear to have put in place the compliance system and associated certifications to safeguard against the occurrence of the type of misconduct alleged, the NDFA has not sought to invoke Regulation 57 to date. However, the matter will be kept under review if and as any developments arise.