Public Procurement Ireland’s Experience – an Overview Billy Noone National Public Procurement Policy Unit Department of Finance Ireland
Basis of Regime • EU Treaties • Public Procurement Directives • National Procedures / Legislation • Government Procurement Agreement of the WTO
EU Treaties Principles of • Non – discrimination / equality of treatment • Openness • Transparency • Freedom to establish / provide services • Proportionality • Mutual recognition
EU Directives • Promote Internal Market and observance of Treaty principles by – • Ensuring necessary publicity for contracts • Establishing fair procedures • Requiring use of transparent award criteria • Promoting competition to deliver best value for money • Appropriate disclosure of information
Public Procurement Legislation Three amended by 97/52/EC
Utilities Procurement Legislation
Impact of Directives • By the end 1980’s Directives deemed to have had little affect • Only about 5% Public Procurement cross Borders • Ineffective transposition in Member States • Lack of awareness / national preferences retained
Commision Initiatives • Remedies Directives Introduced • Coverage extended to Utilities [1990] • Coverage extended to Services [1992] • Directives revised by 1993 • Average 10% public Procurement cross border by late 1990s
Recent Review of Directives • “Public Procurement in the EU – Exploring the way forward” – 1996 Green Paper • Wide ranging debate – 300 responses from Member States • March 1998 Communication“Public Procurement in the EU” – Action Plan to address issues identified • Process of revision of Directives commenced
Issues Identified • Simplification & Clarification of Directives • More flexibile procedures • Provision for use of electronic means of procurement • Reflect de – regualtion/liberalisation in certain markets • Clarification on promoting other policy issues, e.g. environmental / social
New features of revised Directives • Four Directives consolidated into one • Framework agreements/contracts provided for • New flexible procedure for complex contracts • eProcurement • eCatalogues • eAuctions.
Continued • Mandatory exclusion for certain criminal convictions • Publication of Award Criteria Weightings • Publication of Purchaser Profile encourgaged – via PIN • Postal Service Providers transferred to Utilities Directive
Public Procurement in Ireland • Pre EU Accession • Department of Finance responsibility • Government Contracts Committee • Central Purchasing • Administrative arrangements • Non - statutory
Public Procurement in Ireland • Post EU Accession • Works Directives 1971 • Abolition of National Preferences • Transposing Directives into national law • - Statutory Instruments / Secondary Legislation • Implementing Legal Remedies procedures [in early 90s] • National representation at EU Fora
EU Dimension / Obligations • Process of drafting & adopting Directives • Commission Advisory Committees • Some Specialist Groups (e.g. currently on eProcurement, Defence) • Council Working Groups
Problems encountered • Dissemination of Information • Decentralised system • Took time to adapt • Training
Problems [continued] • Implementing into national law • Advice of our Law Offices • Adopted direct method – [Statutory Instruments] citing the Directives • Satisfying the Commission ?
Advantages of direct transposition • Less demand on scarce internal resources • Less risk of mis – interpretation in transposition • Rules explained by user friendly guidelines
Disadvantages of direct transposition • Less legal clarity • Less legal certainty • Less user friendly for purchasers / clients • Preference of Commission !?
CA’s Problems in Operation of Directives • Minimum times allowed for responses –too long ? • Procedures too restrictive, cumbersome, inflexible [e.g. no framework outside Utilities up to recent revision], • Lack of understanding of the different procedures • Thresholds relatively low ?
Consequences • Purchasers fearful of infringing unintentionally • Technical infringements more likely than deliberate breaches • More resort to legal advice • Process more time consuming
Addressing Problems • Clear, user friendly guidance • Effective dissemination of information • Use of websites and other electronic means • Representative fora for addressing issues and promoting understanding
Some features of Ireland’s approach • National Public Procurement website [etenders.gov.ie] being upgraded • New more comprehensive guidance • Government Contracts Committee [GCC] – more widely representative • Forum on the Construction Industry • Forum on Public Procurement in Ireland
Current Developments in Ireland • Transposition of EU Directives • Updating National Guidelines • Issues arising from recent Case Law • eProcurement Strategy • Public Private Partnerships • Forum for the Construction Industry
Guidance on • Competitive Process • Debriefing / Disclosure of Information • Frameworks / Electronic Procurement • [+ Other features of new Directives] • New National Strategy • Infringement Proceedings • Ethics • Construction Issues
eProcurement Strategy • Study of market with wide consultation • Report and Recommendations agreed by Government - April 2002 • Recommendations: - • Major procurement management reform • Organisational change • Training / development of procurement expertise • Legal/regulatory change • Appropriate technologies, systems etc. • Public Procurement Website: www.etenders.gov.ie
Issues arising from recent Case Law, Commission Examinations, Reviews etc. • Alcatel Case Ruling [opportunity to appeal award decision] • Social Welfare Payments Service • Health Board Ambulance Contract • Commission review of Remedies Directives
Treaty Principles – how they might apply • Non – regulated contracts • Sub threshold contracts [ECJ ?] • Larger Contracts - Examples • Social Welfare Payments Service [ECJ] • Health Board Ambulance Contract [ECJ]
Ireland’s Procurement Market – €000m • Central Government 1,350 • Local Authorities 4,000 • Health Sector 2,200 • Education Sector 1,300 • Non-commerical State Bodies 700 • Commerical SBs / Utilities 5,450 • Total15,000
Percentage Imports [approx] • Central Government 34 % • Local Authorities 19 % • Health Sector 60 % • Education Sector 15 % • Non-commercial State Bodies 24 % • Comerical SBs / Utilities 55 % • Total Market 35 / 40%
Thank You !! Questions ??
