Public procurement procedures require all applicants to meet certain standards when applying for public contracts. In this regard at tender stage applicants must sign a declaration in relation to their financial standing, their legal standing, their payment of taxes and social contributions; and a statement that none of the circumstances for exclusion apply. The criteria upon which contracting authorities may exclude applicants from the award procedure of public contracts are set out in public procurement regulations and directives. Before an applicant, in relation to certain breaches is excluded, the applicant may make a case and provide supporting evidence as to why it should not be excluded. The contracting authority must consider this evidence before deciding whether to exclude or include an applicant.
In order to be considered for the award of contracts, applicants must pre-qualify by meeting criteria which are designed to assess their competence and capacity to perform the contract. Those who do not meet minimum criteria are excluded from further participation in a tender competition. When invoking the grounds for exclusion it is important that a contracting authority has evidence of a sufficiently robust nature to withstand any challenge to that decision. For example in the case of non-payment which is the result of insolvency of a contractor then the insolvent entity may be excluded on the basis of their insolvency. If the issue is one of a refusal to pay and solvency is not in question then, in the absence of a binding decision or a court judgement regarding that non-payment, the contracting authority is not in a position to exclude since there may be a valid reason for the non-payment.
As the Deputy is aware the Government approved the delegation of responsibility for implementation of the Construction Contracts Act 2013 to the Minister of State for Business and Employment at the Department of Jobs, Enterprise and Innovation, Mr Gerald Nash T.D., in November 2014. The enactment of the Construction Contracts Act 2013 marked a significant step towards the Programme for Government commitment to introduce new robust legislation to protect small building subcontractors that have been denied payments from bigger companies. The legislation when implemented will provide new minimum contractual provisions concerning payment arrangements between the parties to a construction contract. Where payment disputes do arise between the parties to a construction contract, either party will have the right to refer the payment dispute to adjudication. I understand that work is continuing on the preparations for the full implementation of the Act and a specific date for its implementation will be announced in advance once the necessary arrangements have been finalised, in order to provide sufficient notice to those affected by the Act's provisions.
