Dáil Éireann Debate, Tuesday - 11 June 2013
697. Deputy Derek Nolan asked the Minister for Justice and Equality the measures that have been taken to open competition for contracts for direct provision per the recommendations of the Value for Money Report 2010; the reason the awarding of these contracts is not governed by European Communities (Award of Public Authorities’ Contracts) Regulations 2006 (SI 329/2006); and if he will make a statement on the matter. [26866/13]
View answerThe Reception and Integration Agency (RIA) of my Department is responsible for the operation of the system of direct provision. There are currently 34 asylum accommodation centres under contract to RIA, providing accommodation and ancillary services to 4,650 persons. Of these 34 centres, 7 are State owned. That is to say, while the centres are managed by private companies under contract to RIA, the land and buildings are owned by the State. The remaining centres are commercially owned and operated and, for the purposes of this reply, these are called commercial contracts.
The purpose of the 2006 Regulations cited in the question is to give effect to EU Directive 2004/18/EC dated 31 March 2004, (as amended by Directive 2005/51/EC dated 7 September 2005 and Directive 2005/75/EC dated 16 November 2005) concerning public procurement. A distinction needs to be drawn in relation to the procurement process as between management contracts for RIA's State-owned accommodation centres and the commercial contracts, the former being already subject to ‘open’ tenders under the above EU Procurement Directive.
In relation to commercial contracts, up to 2010 RIA placed adverts in national newspapers seeking expressions of interest in providing accommodation for asylum seekers. This was in accord with ‘the negotiated procedure’ described in the Guide to Community Rules on Public Procurement of Services (Directive 92/50/EC). The Value for Money (VFM) Review of spending by RIA on asylum seeker accommodation, referred to in the question, was initiated in January, 2009 and the report was published in May 2010. The full VFM report is available at RIA’s website www.ria.gov.ie.
The Review acknowledged the unique challenges in this particular area of procurement, e.g. the unpredictability of demand, the requirement to disperse asylum seekers around the country, local opposition to the opening of new centres, children settled in schools and so on. Among the recommendations of the VFM report was the introduction of a mix of ‘contracts for capacity’ and ‘contracts for availability and occupancy’ as well as a 'more open' tendering system in respect of the commercially owned and operated centres in the RIA portfolio. How this ‘more open’ tendering process is to be achieved has been the subject of consideration, including legal discussions, since. Pending the determination of the commercial contract tender process described here, existing contracts, as far as practicable, have introduced a number of elements recommended in the VFM report. For example, some contracts now involve a mix of ‘contracts for capacity’ and ‘contracts for availability and occupancy’ which have the dual purpose of maximising the occupancy of the centre while minimising RIA's expenditure. None of these contracts is for any more than one year and all have ‘get out’ clauses.
Following the VFM Report, the priority was the tender for the management of the 7 State owned centres. Drafting of the Request for Tender (RFT) began in early 2011, the RFT was published on 2 September 2011, the evaluation period began at the end of October 2011 and a report of the evaluation committee was signed off on 5 April 2012. Notification letters issued on 10 April 2012 and new contracts started in mid-June 2012. During the course of that tender consideration process, intensive legal correspondence and meetings in relation to the possible invocation of the EU Remedies Directive (transposed into Irish law in March, 2010) took place with some disappointed tenderers. This necessitated the seeking of further legal advice before the contracts were finally awarded.
Assuming that the negotiated procedure for commercial contracts, which has been the basis of RIA tendering since it began in 2000, is no longer applicable, specific legal advice is essential as to under which section of the above mentioned EU Procurement Directive the tender falls, as well as the extent to which the existing geographical dispersal of asylum seekers can be taken into account in the assessment criteria. The latter does not arise in the case of the tender for the management of the State owned centres, as the centres are in already fixed locations.
The experience of the State-owned tender competition has been invaluable in informing RIA of specific issues, including the implications of the Remedies Directive, to be addressed in the commercial contract draft tender process. It needs to have regard to the fact that the asylum accommodation system, while undoubtedly a service provision to the State by private contractors, fundamentally concerns human beings who see their current accommodation as their home with links to local schools and medical and social services. The Deputy will be particularly aware of the disruption caused by the closure of the Lisbrook asylum accommodation centre in Galway last year and will note that further such disruption may be a necessary outcome of a more open tendering procedure. The RIA is in the process of drafting the commercial contract tender which will then be considered by the Procurement Policy Unit of my Department and then by the State's legal advisers. The target date for the publication of a commercial contract tender document is October, 2013.
While this tender preparation takes place, the direct provision is being managed closely by RIA, taking account of the decline in the number of persons seeking accommodation. During the four year period ending on 31 December, 2012, RIA had closed 25 centres and was accommodating 2,161 fewer persons. Over this period, RIA spending had declined from €91.5 million to €62.3 million i.e. 32%.
