Public Procurement

Ireland’s Experience – an Overview

Billy Noone National Public Procurement Policy Unit

Department of FinanceIreland

Basis of Regime EU Treaties

Public Procurement Directives

National Procedures / Legislation

Government Procurement Agreement of the WTO

EU TreatiesPrinciples 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

Supplies Works Services Remedies

77/62/EEC80/767/EEC88/295/EEC

93/36/EEC

71/305/EEC

89/440/EEC

93/37/EEC92/50/EEC

89/665/EEC

2004/18/EC

Three amended by 97/52/EC

Public Authorities

Utilities Procurement Legislation

Supplies, Works and

90/531/EEC

Services

93/38/EEC[amended by

98/4/EC]

Remedies

92/13/EEC

Supplies,Works and Services2004/17/EC

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 reformOrganisational changeTraining / development of procurement expertiseLegal/regulatory changeAppropriate 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

Total 15,000

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 ??