1. Public Procurement Ireland’s Experience – an Overview Billy Noone National Public Procurement Policy Unit Department of Finance Ireland

2. Basis of Regime EU Treaties Public Procurement Directives National Procedures / Legislation Government Procurement Agreement of the WTO

3. EU Treaties Principles of Non – discrimination / equality of treatment Openness Transparency Freedom to establish / provide services Proportionality Mutual recognition

4. 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

5. Public Procurement Legislation SuppliesWorksServicesRemedies 77/62/EEC 80/767/EEC 88/295/EEC 93/36/EEC 71/305/EEC 89/440/EEC 93/37/EEC 92/50/EEC 89/665/EEC 2004/18/EC Three amended by 97/52/EC Public Authorities

6. 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 Services 2004/17/EC

7. 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

8. 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

9. 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

10. 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

11. New features of revised Directives Four Directives consolidated into one Framework agreements/contracts provided for New flexible procedure for complex contracts eProcurement eCatalogues eAuctions.

12. 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

13. Public Procurement in Ireland Pre EU Accession Department of Finance responsibility Government Contracts Committee Central Purchasing Administrative arrangements Non - statutory

14. 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

15. EU Dimension / Obligations Process of drafting & adopting Directives Commission Advisory Committees Some Specialist Groups (e.g. currently on eProcurement, Defence) Council Working Groups

16. Problems encountered Dissemination of Information Decentralised system Took time to adapt Training

17. Problems [continued]  Implementing into national law  Advice of our Law Offices  Adopted direct method – [Statutory Instruments] citing the Directives  Satisfying the Commission ?

18. Advantages of direct transposition  Less demand on scarce internal resources  Less risk of mis – interpretation in transposition  Rules explained by user friendly guidelines

19. Disadvantages of direct transposition  Less legal clarity  Less legal certainty  Less user friendly for purchasers / clients  Preference of Commission !?

20. 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 ?

21. Consequences  Purchasers fearful of infringing unintentionally  Technical infringements more likely than deliberate breaches  More resort to legal advice  Process more time consuming

22. 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

23. 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

24. 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

25. Guidance on Competitive Process Debriefing / Disclosure of Information Frameworks / Electronic Procurement [+ Other features of new Directives] New National Strategy Infringement Proceedings Ethics Construction Issues

26. 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

27. 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

28. 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]

29. Ireland’s Procurement Market – €000m  Central Government1,350  Local Authorities4,000  Health Sector2,200  Education Sector1,300  Non-commerical State Bodies 700  Commerical SBs / Utilities5,450  Total 15,000

30. Percentage Imports [approx]  Central Government34 %  Local Authorities19 %  Health Sector60 %  Education Sector15 %  Non-commercial State Bodies24 %  Comerical SBs / Utilities55 %  Total Market 35 / 40%

31. Thank You !! Questions ??