Public Procurement is governed by EU and National rules and must comply with relevant EU, WTO and national legal requirements and obligations. The aim of these rules is to promote an open, competitive and non-discriminatory public procurement regime which delivers transparency and value for money outcomes. The procurement rules have been developed in tandem with the WTO rules on procurement and are therefore flexible in a global context.
The general requirements for works and works-related contracts are set out in the Capital Works Management Framework (CWMF). The CWMF represents the tools that a public body must use to procure and manage the external resources necessary to deliver a public works project that is to be delivered under the Exchequer-funded element of the National Development Plan. This guidance incorporates key elements of EU legislation that have been transposed into Irish law and is complemented by circulars and guidance issued by this Department and the Office of Government Procurement.
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 2016 Regulations contain both compulsory and voluntary grounds for the exclusion of bidders.
Pre-qualification documentation provides for criminal convictions for specified offences and non-compliance with tax and social welfare obligations. There are other, specified exclusion grounds which can be deployed at the discretion of the contracting authority. The choice will depend on the particular procurement.
Contracting authorities should ensure that those who are awarded public contracts have the financial standing and technical capacity to complete the works in a safe and timely manner. Bodies procuring public works projects must comply with the provisions of the CWMF which contains extensive guidance covering all aspects of the procurement and contract administration stages. Specific guidance and templates are also published to manage the pre-qualification stage of a procurement process. It is important, when assessing the financial standing and technical capacity of a contractor to undertake a particular project, that the contracting authority should set standards that are proportionate to the project and its associated risks.
To provide targeted assistance to contracting authorities on this important stage of the procurement process guidance note GN 2.3.1.3 - Minimum Standards for Suitability Works Contractor Criteria (Open, Restricted Procedure) have been published. This guidance note sets out standards under each of the criteria that may be used to assess a contractor’s financial standing and technical ability.
The management of the tendering process for a public contract is a matter for each contracting authority. It is the responsibility of each contracting authority to ensure that tenderers comply with all the requirements of the process.
The EU-UK Trade and Co-operation Agreement (TCA) contains provisions ensuring access to the public procurement markets of both parties. The EU and UK have agreed to zero tariffs and zero quotas on products that comply with the appropriate rules of origin, regulatory and customs cooperation mechanisms, as well as provisions ensuring a level playing field for open and fair competition, as part of a larger economic cooperation.
Title VI of the Agreement, which sets out the provisions relating to public procurement, goes beyond commitments under the WTO Government Procurement Agreement (GPA), to which the UK has acceded. EU companies will be able to participate on an equal footing with UK companies in bids for procurement tenders covered by the agreement, and vice versa.
The Agreement further provides for non-discrimination of EU companies established in the UK (and vice versa) for national procurement, i.e. below the current thresholds of the GPA. The Agreement also allows the use of its bilateral dispute settlement mechanisms for disputes that might arise in regards to the procurement opportunities subject to the GPA.
The NI Protocol which forms part of the Withdrawal Agreement seeks to avoid a hard border on this island, the Common Travel Area provides additional rights to UK and Irish citizens to live and work in both jurisdictions. The combined effect of the EU-UK Trade and Co-operation Agreement, the NI Protocol and the Common Travel Area means that procurement opportunities in both jurisdictions remain open to businesses on both sides of the border and the UK.
