I propose to take Questions Nos. 248 to 252, inclusive, together.
Public procurement in Ireland is governed by EU Procurement Directives and national legislation and guidance. Public bodies are obliged to act in accordance with these rules and accordingly must observe the general principles of EU law including non-discrimination, the free movement of goods and services, equal treatment, and proportionality and transparency in awarding public contracts. They must also ensure that procurement transactions and decisions are fair, equitable and deliver value for money.
Public procurement procedures require bidders to meet certain standards when applying for public contracts. The criteria upon which contracting authorities may exclude bidders from the award procedure of public contracts are set out in Regulation 57 of S.I. No. 284 of 2016 - European Union (Award of Public Authority Contracts) Regulations 2016 on public procurement. The 2016 Regulations contain both compulsory and voluntary grounds for the exclusion of bidders.
The compulsory grounds for exclusion relate to certain serious offences which are deemed to preclude award of public contracts to a bidder - at least for a period of time. The compulsory exclusion grounds must be applied at all stages of a procurement procedure. These are:
- participation in a criminal organisation
- terrorist offences or offences linked to terrorist activities
- money laundering or terrorist financing
- child labour and human-trafficking related offences
- breach of tax or social security obligations.
Exclusions can only take place where the bidder or a person who is a member of its administrative, management, or supervisory body, or has powers of representation, decision, or control over it, has been convicted by a final judgment of one of the offences. When invoking the grounds for exclusion, a contracting authority must have evidence of a sufficiently robust nature to withstand any challenge to that decision. In the absence of a binding decision or final court judgment, the contracting authority may not be in a position to exclude a bidder.
Contracting authorities have discretion to disqualify bidders for competing in a public procurement competition for the following reasons:
- where the contracting authority can demonstrate violations of environmental, social and labour law obligations including rules on accessibility for disabled persons
- bankruptcy; insolvency or winding-up procedures; assets being administered by liquidator or by the Court; arrangements with creditors
- where the contracting authority can demonstrate grave professional misconduct
- where a contracting authority has sufficiently plausible indications to conclude that bidders have entered into agreements with other tenderers aimed at distorting competition
- poor past performance where the candidate has shown significant or persistent deficiencies in a prior public contract which led to termination, damages or other comparable sanctions
- where a conflict of interest cannot be remedied by any less intrusive means
- where a distortion of competition arises from direct or indirect involvement in the preparation of the procurement procedure
- the bidder has been guilty of serious misinterpretation in supplying information required for the verification of the absence of Exclusion Grounds or the fulfilment of the Selection Criteria, has withheld such information or is not able to submit supporting documents in relation to the ESPD (European Single Procurement Document)
- where the bidder has undertaken to unduly influence the decision-making process of the contracting authority or obtained confidential information which may confer upon it undue advantages in the procurement procedure or where the tenderer has negligently provided misleading information that may have a material influence on decisions concerning exclusion, selection or award
Where there is a conviction on compulsory exclusionary grounds, a bidder is excluded from competing for public contracts for a period of 5 years from the date of the relevant conviction. Exclusion on the basis of voluntary exclusion grounds is for a period 3 years from the date of the relevant event. A bidder has the opportunity to provide evidence at tender stage of “self-cleaning” measures and must not be excluded if such evidence is considered sufficient. Such evidence could include, for example, payment of compensation in respect of any damage caused, active cooperation with investigating authorities by clarifying the facts and circumstances, implementation of technical, organisational or personnel measures that are appropriate to prevent further misconduct. The self-cleansing option cannot, however, be extended in the case of exclusion from participation in procurement procedures because of a final court judgment.
Overall, when submitting a tender, bidders must consider whether any of the exclusion grounds listed in the procurement documents apply to them. Should any of the grounds apply, bidders must advise the contracting authority accordingly. The management of a tendering process for a public contract is a matter for each contracting authority. It is the responsibility of each contracting authority to assess that bidders comply with all the requirements of the process. Contracting authorities may exclude bidders at any time during the procedures in accordance with the Regulations. In applying discretionary Exclusion Grounds, contracting authorities should pay particular attention to the principle of proportionality.
Exclusion of bidders on grounds other than those set out in the regulations is open to legal challenge by the excluded bidders.