Dáil Éireann Debate, Thursday - 2 March 2017
144. Deputy David Cullinane asked the Minister for Public Expenditure and Reform the number of breaches in public procurement rules as published by the Comptroller and Auditor General in public bodies from 2011 to date in 2017, inclusive, by year, by public body, by public contract and by amount, in tabular form; and if he will make a statement on the matter. [10893/17]
Amharc ar fhreagraThe data referred to by the Deputy is reported on by the Comptroller and Auditor General (C&AG) in a number of annual reports relating to the period in question. Any such reports compiled by the C&AG are available in either published form or through their website.
Under Circular 40/02 - Public Procurement Guidelines, all procurement contracts which a Department proposes to award without a competitive process, which exceed €25,000 in value (exclusive of VAT), should be reviewed within the Department, preferably by the Internal Audit Unit or alternatively by an appropriate senior officer who is not part of the procurement process. Circular 40/02 was developed in consultation with the Comptroller and Auditor General, to obligate each Department to complete an Annual Report (signed off by the Accounting Officer) in respect of such contracts.
The State procures in the order of €12 billion in goods, works and service annually. Given the volume of expenditure, the procurement rules do allow for circumstances where it is not possible to carry out a full procurement procedure. These circumstances are provided for in the European Union and in most countries that have a developed procurement system. Currently, direct procurement without use of a competitive process is provided for under Article 32 of EU Directive 2014/24/EU. This Article lists specific cases and circumstances where it is justifiable to award public contracts by a negotiated procedure without prior publication. The cases listed in the Directive are not exhaustive and include the following:
- Where no tenders or suitable tenders have been submitted in response to an open procedure or a restricted procedure. (i.e. following a procedure)
- Where only a proprietary product will meet requirements. Examples might include parts for specialist equipment such as airplanes, ships, security equipment, or certain types of software licencing arrangements;
- Where an agent, licensee or franchise holder has sole rights to supply a service or product. In general, the OGP would recommend that the purchase of such products or services be avoided but it can be unavoidable.
- Where due to extreme emergency arising from events that are unforeseeable by the Contracting Authority a competitive process cannot be undertaken in the normal timeframe. Such circumstances should be relatively rare. An example in this area would be where an immediate purchase must be made in order to avoid risk to persons, property or significant financial loss.
- where a change of supplier would oblige the contracting authority to acquire supplies having different technical characteristics which would result in incompatibility or disproportionate technical difficulties in operation and maintenance;
- For bargain purchases or purchases under advantageous conditions, e.g. liquidation sale, creditors' agreement, winding-up
- For supplies quoted and purchased on commodity exchanges
Such procurements do not constitute breaches of the public procurement rules. The EU Directives recognises that there are situations and circumstances where direct procurement without a competitive process is both necessary and legitimate.
Finally, I would point out that overall responsibility for ensuring compliance with all national and EU procurement rules and procedures rests with contracting or purchasing Departments and public agencies.
