Amendment No. 2 follows discussions that I had with the Minister of State's office and officials. I have looked at my own legal advice and how to strengthen the Bill afterwards. I am confident about the provisions under sections 3 and 4. I believe they are well balanced and give a suitable level of discretion to public authorities with regard to how they apply the legislation. I was conscious that it was possible that section 6 could be read in a way which seemed overly prescriptive and seemed not to recognise the discretion of public authorities or to address the fact that in different public authorities and different procurement processes, some guidelines will be appropriate to some processes but not to others. There are different factors. The Minister of State made a good point.
I am talking about guidelines, because we need to support public authorities in how they apply these factors and quality criteria. There are also existing guidelines under other Departments that have particular expertise and insights. The amendment would substantially changed this section, but in a way that would address many of the concerns that have been raised. I do not see it as weakening the section but more as making sure that it is clearly framed as guidance rather than as a requirement. We are giving the potential for an opt-out, but making it, in very strong terms, the preferred option that price quality criteria would be applied. As the Minister of State is aware, in the context of very large public projects, I am pressing that 50% at least would be quality criteria. I refer to the projects of major scale, such as, for example, those in the national development plan. There was a majority on price and only a minority on quality in respect of the children's hospital, and the consequences of that have been seen. If we are putting that requirement on public authorities, it is appropriate that we try to give support and guidance to them when they look to say which quality criteria they should apply.
This amendment came from my engagement with the Office of Government Procurement in the previous Oireachtas. One of the things it identified is that it is at the design stage of a request for tender that we can get things right. Sometimes, we cannot just add a criterion in after the fact. It must reflect the purpose of the request for tender, so the request for tender itself must be designed in a way that delivers the most. Sometimes, that means having a request for tender that, for example, includes the phrase "to deliver a playground which promotes inclusion". It is a matter of putting those clauses in because that then gives us the ability to look to quality criteria relating to inclusion and disability, as well as the delivery of slides and swings. That is the reason having guidelines is important. I understand that they were seen to be too prescriptive. What I have done here is very much framed it as guidance by using the phrase "guidance concerning the use and incorporation of qualitative, environmental, social, human rights and equality considerations in the preparation of the procurement procedure". To make it clear that it is not exhaustive, the amendment also calls for "examples, for contracting authorities, of qualitative, environmental, social, human rights and equality considerations that may arise". It is one of the most useful things for contracting authorities if they can look to examples of how others managed to incorporate these factors and reflect them in the design of a request for tenders.
The final paragraph is a reflection of a point the Minister of State made, namely: "examples of regulations, national strategic policies, legal obligations, EU directives and international commitments that might be considered or reflected in the preparation or design of procurement procedure or contracts." It now states that these are examples and they might be considered.
I am delighted to hear that the National Concert Hall is going to be upgraded, but it might be relevant in that context to consider the UN Convention on the Rights of Persons with Disabilities or the legislation from these Houses in respect of Irish Sign Language and ensuring that they are factored into the design at all stages. These are small things, but it is important to have such examples there. Not everyone in every Department knows about everything, but they would have examples that they could consider as to how others have done it. Here it is very specific guidance of how it should it be done, but not a requirement, and then there are also examples of other laws they might want to draw on or other commitments that we might want to consider.
The rest of the section is as it was, but it is now very much moved into a guidance mode rather than a prescription mode. One area where this is going to be very important, because it is a new and developing area, is in respect of green and environmental criteria. I am sure the Minister of State has seen the quite concerning report from earlier this year from the Environmental Protection Agency, which showed that in 2020, from a total reported spend of approximately €322 million on contracts over €25,000, only 17%, worth €53 million, included green criteria. Green criteria were not included in three quarters of procurement contracts in 2020. This is where the connection piece comes in. The Department of Education, for example, only used green criteria in three contracts over €25,000 in 2020. When we think of schools, we think of insulation and the interest among children and school communities in the environment, and we would imagine that procurement for education and schools would factor in green criteria, yet we saw that they did not. Much of that relates to the need to back up the general requirements with the discretionary opt-out and a strong mandate and imperative towards quality that is in the rest of the Bill, with a supportive element of guidance that encourages those whose number one focus might not be the environment. It is not what they are thinking about, but it gives them tools that they can use to factor these things in. The Minister of State raised concerns on that section. I am of the view that my amendment will at least partially, if not fully, address them.
