Public Procurement is governed by EU legislation and National rules and guidelines. The aim of these rules is to promote an open, competitive and non-discriminatory public procurement regime which delivers best value for money.
Public procurement procedures require applicants to meet certain standards when applying for public contracts. The criteria upon which contracting authorities may exclude applicants 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 grounds for exclusion that apply are stated up front in the pre-qualification documents. Certain exclusion grounds apply to all procurements; these include criminal convictions for specified offences and non-compliance with tax and social welfare obligations. There are other exclusion grounds which can be deployed at the discretion of the contracting authority. The choice will depend on the particular procurement – poor past performance of a public contract is one such ground for exclusion.
The circumstances that would lead to exclusion on the grounds of poor past performance are significant or persistent deficiencies in a prior public contract. These deficiencies must be material and have led to termination, damages or other comparable sanctions. It is not sufficient for a contracting authority to merely be dissatisfied – they must have taken steps to deal with the poor performance at the point at which it became evident by applying the provisions of the contract up to and including termination where necessary.
Where a contract has been terminated or damages successfully applied, a contractor may be excluded from subsequent tender competitions for up to three years from the date of the termination or the application of damages unless the contractor can demonstrate that they have taken the steps necessary to remedy their performance.
When making a submission a tenderer must consider whether any of the exclusion grounds listed in the procurement documents apply to them. Should any of the grounds apply, they must advise the contracting authority accordingly and, they are excluded in relation to certain breaches, they may make a case and provide supporting evidence as to why they should not be excluded. The contracting authority must arrive at a decision based on evidence rather than hearsay or dissatisfaction and must consider the principle of proportionality in its deliberations.