Ireland: The Government Procurement Review: Ireland Chapter

I INTRODUCTION

The key procurement legislation applicable in Ireland implements the corresponding EU directives and is as follows:

Additionally, the case law of the Court of Justice of the European Union and the General Court apply.

As the provisions of the Directives and the Government Procurement Agreement (GPA) are closely aligned, compliance with the Directives (i.e., implementation of the Regulations) ensures compliance by Ireland with the GPA.

Regulation 26 of the Utilities Regulations expressly requires contracting entities, in accordance with the GPA, to treat economic operators in third countries no less favourably than operators in EU Member States. The Public Sector Regulations do not transpose the equivalent provision of the Public Sector Directive (Article 5), possibly because most state bodies are already covered by the GPA.

The national Regulations implement the Directives, and therefore the underlying principles are those derived from the Treaty on the Functioning of the European Union: free movement of goods, freedom of establishment, freedom to provide services, nondiscrimination, equal treatment, transparency, proportionality and mutual recognition.

In Ireland, procurement practices of public bodies (not private utilities) are also subject to audit and scrutiny under the Comptroller and Auditor General (Amendment) Act, 1993.

The Department of Public Expenditure and Reform is responsible for implementing national policy on public procurement.

At the national level, procurement of public contracts below the thresholds is governed by the Department of Finance (Department) Public Procurement Guidelines (Green Book), most recently revised in November 2010, and other departmental guidelines.

Although the Green Book and other Departmental guidance is non-binding, the Code of Practice for the Governance of State Bodies (most recently revised in May 2009) states that it is the responsibility of the boards of state bodies to ensure that the procedures set out under EU and national procurement rules are adhered to. Under the Code, the board of each state body is required to affirm compliance with the relevant procurement procedures in an annual report to the Minister for Finance.

II YEAR IN REVIEW

The roles of the National Procurement Service and the National Public Procurement Policy Unit were subsumed into a single body, the Office of Government Procurement (OGP), with effect from 1 January 2014. The OGP is an office within the Department of Public Expenditure and Reform. It has been tasked with centralising public sector procurement and standardising documentation.

In O'Kelly,² the High Court refused an application by O'Kelly Brothers for an interlocutory injunction to suspend the performance of a below-threshold contract for the demolition of 66 unoccupied dwellings as part of the Cork City North West Regeneration Project. The High Court confirmed that the legal test for deciding on an interlocutory injunction for suspension of a public contract was that established in the leading Campus Oil case³ (namely: is there a fair issue to be tried?; would damages be an adequate remedy; and where does the balance of convenience lie?). The Court indicated that, in procurement cases, damages are generally an adequate and appropriate remedy, and also found that the balance of convenience favoured the contract being allowed to continue, given the strong public interest in the project. The Court suggested that the contract might have attracted cross-border interest (and therefore the application of the EU Treaty principles) notwithstanding its relatively low value (€500,000).

In Baxter Healthcare and Fresenius Medical Care,⁴ the High Court confirmed that the standard of review in procurement cases is that of manifest error. The Court indicated that public bodies would be given a wide margin of appreciation in the evaluation of tenders. Peart J stated that the Court must not lightly interfere in the tender process, including the result, and should do so only where a manifest error has occurred – in other words, a clear error that prompts the Court to ask itself if this could possibly be correct, and to answer that question in the negative. The Court noted that the duty is on the tenderer to expressly put before the contracting authority all relevant information and that the contracting authority is not obliged to seek out additional information by way of clarification. The Court also found that there was a distinction to be made in relation to the application of the general principles of equal treatment and transparency, depending on whether the contract under review was an Annex IIA contract or an Annex IIB contract.

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Footnotes

1 Mary Dunne is a partner at Maples and Calder.

2 O'Kelly Brothers Civil Engineering Company Limited v. Cork City Council & Another (22 February 2013).

3 Campus Oil v. Minister for Industry and Energy [1983] IR 88.

4 Baxter Healthcare v. HSE and Fresenius Medical Care v. HSE (16 July 2013).

This article first appeared as the Ireland chapter in Government Procurement Law Review, 2nd edition published in June 2014 by Law Business Research Ltd. 

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.