Public procurement is the acquisition, whether under formal contract or not, of works, supplies and services by public bodies. National rules governing public procurement must comply with EU Treaty principles, rules, and national guidelines. These rules have been developed to ensure equal treatment; non-discrimination; mutual recognition; proportionality; and transparency.
Tenderers who feel that they have not been treated fairly during the course of a public procurement process may have recourse under the Remedies Directive (EU Directive 2007/66/EC) which provides for remedies in both the public sector and utilities sectors, for tenderers and others that have been harmed by breaches of the Public Contracts and Utilities Directives; this Directive has been transposed into Irish Law by regulations made under Statutory Instruments 130 of 2010 and 131 of 2010.
The Remedies Directives leaves it to the Member States (MS) to decide whether reviews are handled by administrative or judicial bodies. The Annual Implementation Review published by the European Commission (9 October 2012) outlines the review procedures in EU Member States. First-instance independent reviews are carried out by judicial bodies in 13 MS (DE, FI, FR, EE, EL, IE, IT, NL, PT, LT, LU, SE and UK), and by an administrative body in 14 MS (AT, BE,27 BG, CY, CZ, DK, ES, HU, LV, MT, PL, RO, SI and SK). The actual difference between the type of review body chosen is less acute than the terms ‘administrative’ or ‘judicial’ would suggest. The report goes on to clarify that, many of the administrative bodies in the MS are quasi-judicial in nature. In these countries the standing of the persons deciding the cases is also similar to a judge.
In addition to the option of judicial review, the Remedies Directive outlines practices that are in place at national level through guidance documents issued by the National Public Procurement Policy Unit in my Department. These would include:
- Public Procurement Guidelines - Competitive Process 2004 , in respect of the procurement of general services and supplies - highlighting the need for a competitive process in respect of contracts below the EU threshold values;
- Circular 10/10 – provide guidance to public bodies to promote participation of small and medium-sized enterprises in the award of public contracts;
- the Capital Works Management Framework - provides a suite of best practice guidance, standard contracts and generic template documents, which are available to download for all contracting authorities to provide a consistent approach to the management of public works and construction-related services projects; and
- Standardisation and simplification of tender documentation (for supplies and services) - In order to reduce the costs involved in participating or conducting the procurement function, the National Procurement Service has published a suite of model tendering and contract documents which help businesses and buyers to reduce costs.
All regulations, circulars, guidelines and standard forms (for general supplies and services) are available on the Government’s eTenders website at: www.eTenders.gov.ie. The Capital Works Management Framework documents are available on the Construction Procurement Reform website: www.constructionprocurement.gov.ie.
In terms of centralised procurement arrangements, the National Procurement Service (NPS) as a matter of course offers full debriefing to suppliers who have engaged in the procurement process. At these sessions contractors can raise any areas or issues of concern.
The NPS is also fully compliant on the issue of contractors’ rights under the Remedies Directive. Such rights ensure full disclosure of relevant details regarding the awarding of a tender and the relative merits and characteristics of that tender versus those who were unsuccessful.
The NPS has recently established a collaborative working group which brings together Employer Representative Bodies (IBEC, SFA, ISME etc.) and procurement stakeholders in the public service to discuss issues and areas of concern. The NPS is confident that the working group will help to inform the continued delivery of best practice by public sector Buyers through the procurement process.
Finally I would point out that the area of Public Procurement is undergoing an extensive reform. While this reform is primarily aimed at delivering public services at a competitive cost, it will also focus on improving public procurement practices. This will ensure openness, and equality of opportunity for businesses including the SME sector.
