1 Relevant Legislation
1.1 What is the relevant legislation and in outline what does each piece of legislation cover?
There are three main pieces of national legislation, which implement the EU public procurement Directives.
The European Communities (Award of Public Authorities' Contracts) Regulations 2006, SI No 329 of 2006 (the "Public Sector Regulations") implement Directive 2004/18/EC on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (the "Public Sector Directive").
The European Communities (Award of Contracts by Utility Undertakings) Regulations 2007, SI No 50 of 2007 (the "Utilities Regulations") implement Directive 2004/17/EC coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors (the "Utilities Directive").
On 28 February 2012, Ireland implemented Directive 2009/81/EC dealing with defence and security procurement (the "Defence Procurement Directive") by way of the European Union (Award of Contracts relating to Defence and Security) Regulations 2012, SI No 62 of 2012, (the "Defence Procurement Regulations").
Two separate sets of Regulations govern remedies and enforcement. These implement Directive 2007/66/EC the ("Remedies Directive") – see question 5.1 below.
At national level, procurement of public contracts below the thresholds provided for in the Directives is governed by the Department of Finance Public Procurement Guidelines (or "Green Book"), most recently revised in November 2010, and other nonlegislative guidelines. Although the Green Book and other Departmental guidance is non-binding, the Code of Practice for the Governance of State Bodies (most recently revised in May 2009) states that it is the responsibility of the Boards of State bodies to ensure that the procedures set out under EU and national procurement rules are adhered to. Under the Code, the Chairperson of the Board of each State body is required to affirm compliance with the relevant procurement procedures in an annual report to the Minister for Finance. Accordingly, non-compliance with EU and national procurement rules may have corporate governance implications for State bodies and/or have implications for such bodies' relations with the Department of Finance.
The Green Book, as supplemented by Department circulars, states the general principle that a competitive process should be carried out for all public contracts, unless exceptional circumstances apply, and sets out indicative values and procedures for purchases below the EU thresholds, as follows:
Contracts valued at less than €5,000 may be awarded on the basis of verbal quotes from one or more competitive suppliers. Contracts valued between €5,000 and €25,000 may be awarded on the basis of responses to specifications sent by fax or email to at least three suppliers or service providers. All contracts for supplies and general services with an estimated value of €25,000 and upwards must be published on the government procurement website www.tenders.gov.ie (eTenders). The threshold for a requirement to advertise on the eTenders site for works and related services is €50,000. In addition, with a view to opening up smaller procurements to SMEs, all suppliers and services contracts with an estimated value up to €125,000, and contracts for works and related services with an estimated value of up to €250,000, must be awarded using the open procedure. 1.2 Are there other areas of national law, such as government transparency rules, that are relevant to public procurement?
The Freedom of Information Acts 1997 and 2003 (the "FOI Acts") apply to a wide range of public bodies, including many contracting authorities covered by the procurement rules. The FOI Acts allow natural and legal persons to request the release of information held by public bodies subject to the Acts, including records relating to the tendering procedures of public contracting authorities. Certain records may, however, be exempt from the provisions of the FOI Acts on the grounds of confidentiality or commercial sensitivity. Tenderers are normally requested to indicate in their tenders, with supporting reasons, any information included in their tenders which they wish to be regarded as confidential. According to the Green Book, a contracting authority's deciding officer will normally consult with a tenderer before deciding on whether to disclose such information further to an FOI request. While no category of tenderrelated records is subject to either release or exemption as a class, and each record must be examined on its own merits, previous decisions of the Information Commissioner indicate that a distinction is likely to be made between the tender documents of successful and unsuccessful tenderers, the latter being more likely to qualify as commercially sensitive.
1.3 How does the regime relate to supra-national regimes including the GPA, EU rules and other international agreements?
As noted in question 1.1 above, the national Regulations implement the EU procurement Directives.
As the provisions of the Directives and the Government Procurement Agreement ("GPA") are closely aligned, compliance with the Directives (i.e. implementation of the Regulations) ensures compliance by Ireland with the GPA.
Regulation 26 of the Utilities Regulations expressly requires contracting entities to, in accordance with the GPA, treat economic operators in third countries no less favourably than operators in EU Member States. The Public Sector Regulations do not transpose the equivalent provision of the Public Sector Directive (Article 5), possibly because most State bodies are already covered by the GPA.
1.4 What are the basic underlying principles of the regime (e.g. value for money, equal treatment, transparency) and are these principles relevant to the interpretation of the legislation?
As noted above, the national Regulations implement the Directives and therefore the underlying principles are those derived from the Treaty on the Functioning of the European Union (the 'Treaty') – i.e. free movement of goods, freedom of establishment, freedom to provide services, non-discrimination and equal treatment, transparency, proportionality and mutual recognition.
The Green Book states that in general, a competitive process carried out in an open, objective and transparent manner can achieve best value for money in public procurement and that this is in line with EU Treaty principles and with the Directives.
In Ireland, procurement practices of public bodies (not private utilities) are also subject to audit and scrutiny under the Comptroller and Auditor General (Amendment) Act, 1993.
1.5 Are there special rules in relation to defence procurement or any other area?
On 28 February 2012, Ireland implemented the Defence Procurement Directive by way of the Defence Procurement Regulations, which govern the award of contracts in the field of defence and security.
The Defence Procurement Regulations provide for the protection of confidential information by allowing a contracting authority to require a commitment from the tenderer and the subcontractors identified to approriately safeguard the confidentiality of all classified information (Regulation 20 – Security of Information). Further, Regulation 34 allows contracting authorities to withhold certain information from publication.
In addition, special rules apply in relation to the procurement of energy efficient products.
Under Directive 2009/33/EC of the European Parliament and of the Council on the promotion of clean and energy-efficient road transport vehicles (the "Clean and Energy-Efficient Road Transport Vehicles Directive"), implemented in Ireland by the European Communities (Clean and Energy-Efficient Road Transport Vehicles) Regulations 2011, SI No 339 of 2011, contracting authorities are required to ensure that public contracts for the procurement of road transport vehicles promote the least emitting and most energy-efficient road transport vehicles.
In addition, under the European Communities (Energy End-use Efficiency and Energy Services) Regulations 2009, SI No 542 of 2009 (as amended by the European Union (Energy Efficient Public Procurement) Regulations 2011, SI No 64 of 2011), contracting authorities must consider the energy efficiency guidelines published by the Sustainable Energy Authority of Ireland (SEAI) when devising assessment criteria for the procurement of goods and services.
2 Application of the Law to Entities and Contracts
2.1 Which public entities are covered by the law (as purchasers)?
The Public Sector Regulations apply to "contracting authorities". A "contracting authority" is defined as "the State, a local authority or a public authority or an association comprising one or more local authorities or public authorities, or local authorities and public authorities". A "public authority" is, in turn, defined as "any body corporate, not having an industrial or commercial character, that is established for a public purpose, and – (a) is financed wholly or substantially by the State, a local or regional authority or another public authority; or (b) is subject to management supervision by such a body; or (c) has an administrative, managerial or supervisory board, more than half of whose members are appointed by the State, a local or regional authority or another public authority". This definition is based on the concept of a "body governed by public law" under the Directives.
The Utilities Regulations apply to "contracting authorities" and "public undertakings" which are engaged in one of the activities specified in the Utilities Regulations. A "public undertaking" is one over which a contracting authority may exercise a dominant influence.
The Defence Procurement Regulations also apply to "contracting authorities" as defined in the Public Sector Regulations. The Defence Procument Regulations also apply...