Dáil Éireann Debate, Thursday - 26 October 2023
3. Deputy Rose Conway-Walsh asked the Minister for Public Expenditure, National Development Plan Delivery and Reform to provide details on the level of engagement between the Office of Government Procurement and the Competition and Consumer Protection Commission, CCPC, in respect of public procurement bid-rigging and if he will make a statement on the matter. [47038/23]
View answerCould the Minister outline the level of engagement between the Office of Government Procurement and the CCPC regarding public procurement bid-rigging? The CCPC is the State body responsible for the enforcement of competition law. One of the areas most at risk from anti-competitive behaviour is public procurement, particularly with regard to large construction contracts that involve significant amounts of money and where only a few companies bid. We need to ensure that public money is being adequately protected and that we get value for money.
As a division of the Department of Public Expenditure, National Development Plan Delivery and Reform, the Office of Government Procurement, OGP, is responsible for national procurement policy, the national eTenders platform and for sourcing common goods and services. The OGP engages with stakeholders on an ongoing basis and has engaged with the Competition and Consumer Protection Commission, CCPC, which is the statutory body responsible for promoting compliance with and enforcing competition and consumer protection law in Ireland, on a range of issues.
The OGP's public procurement guidelines for goods and services advise that where a contracting authority suspects bid-rigging or collusive tendering, such activities represent serious infringements of competition law and should be brought to the attention of the CCPC. The OGP's guidelines also refer to the OECD guidelines for fighting bid-rigging in public procurement.
In the interests of time, I will briefly itemise the engagement that has occurred on this topic. The CCPC and OGP met a number of times in 2022 to discuss the availability and suitability of public procurement data for processing through bid-rigging screening tools. The OGP runs a series of procurement officers’ forums to engage with a wide client base on a number of key topics relevant to procurement practitioners. The CCPC sits on both the SME advisory group, which is chaired by Minister of State, Deputy Ossian Smyth, and its communications subgroup, which is chaired by the OGP. The OGP runs a series of community of best practice forums where public procurement buyers come together to exchange best practices and share experiences. CCPC employees have attended these events, most notably in Waterford, Cork and Sligo.
In July 2022, six Spanish construction firms were fined €200 million by the Spanish regulator for colluding on bids for public construction contracts. The Spanish state has banned these companies from participating in the public procurement process. Five of those Spanish companies have won public construction contracts in Ireland. What they did was essentially was agree who would win in advance of the bid, in other words, "It's your turn next". Three bids would be submitted and then two would later pull out leaving one bidder remaining. The Government of the day would have to choose between starting the process over and going with the only remaining bid. Is the Minister aware of these developments in Spain and the operation of these companies here in Ireland? If he is, what measures has he taken to ensure that the practice for which they were fined in Spain is not happening here? Is the CCPC adequately set up to investigate collusion of this nature and protect public money?
Regarding the powers that are available to the CCPC, in 2022, the Competition Act 2002 was amended in 2022. The Competition (Amendment) Act 2022 transposed Directive (EU) 2019/1 of the European Union to create a specific new criminal offence of bid-rigging. That Act identified several practices that would be deemed to be criminal behaviour, some of which the Deputy just described. The reason that change was made was to ensure the CCPC would have sufficient enforcement powers to combat bid-rigging effectively.
We do all we can to give the CCPC and similar bodies the resources they need to implement laws like this. It goes without saying that if the Deputy has any founded concern regarding any bidding processes not being conducted appropriately, I am sure she will raise that directly with the CCPC because she may have very legitimate concerns that merit scrutiny or investigation by the CCPC.
I have. I will not read out the names here today. I will raise it with the CCPC because I have been looking at some patterns involving contracts that have been awarded here that warrant further investigation and explanation. I will not identify the companies, even though I have the details here. I cannot see how companies that were involved in bid-rigging in Spain and were fined for doing so would then come here and the same concerns would not arise. There have been a number of very well-known projects where a number of the bidders would have worked together in the past and you find that coming up to the time when the contract is going to be awarded or the decision is going to be made, suddenly two of them pull out leaving only one bidder. This is a serious matter and we need to reassure the public that everything is transparent and we are really getting value for money in these projects.
At this point, and the Deputy has acknowledged this by the information she is both sharing and not sharing here today, it is important to afford due process. If the Deputy has concerns she believes are worthy of investigation, it is important that the relevant bodies are contacted and the information is shared with them. I will simply assure the House that my view is that our procurement practices are conducted in compliance with the law. The OGP, both directly and indirectly, seeks to create an environment in which tendering and procurement processes are carried out in a way that is consistent with best practice to deliver good value for the taxpayer.
There have been several occasions on which the number of companies participating in bidding processes is far lower than we would have wanted or expected, but my strong view is that much of that is due to legitimate and understandable economic circumstances as opposed to anything else. It is the right of the Deputy to raise this matter here today and raise it elsewhere if she feels it is worthy of scrutiny. I can simply offer assurance to the House regarding the conduct of our procurement practices for all but, of course, any serious matter does need to be investigated.
