Public procurement in Ireland is governed by EU procurement directives and national legislation. Public bodies are obliged to act in accordance with these rules and must respect 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 and equitable and deliver 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 the directives and in corresponding national legislation. In addition, information on the circumstances in which a contracting authority may exclude applicants can be found in Public Procurement Guidelines for Goods and Services published by the Office of Government Procurement. These guidelines were updated in January 2019.
The circumstances that would lead to exclusion on the grounds of poor past performance are significant or persistent deficiencies in a prior public contract. Deficiencies must be material and have led to termination, damages or other comparable sanctions. A contracting authority cannot be merely dissatisfied; it 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 it has taken the steps necessary to remedy its performance.