Statutory Instruments: Public Procurement
Statutory Instruments No. 36-38 of 1992 implement European Community rules on public works contracts, public supply contracts, and the review procedures applicable to the award of such contracts. The Community rules in question are designed to end discrimination by public bodies in favour of domestic suppliers and thus allow open competition in public procurement markets among suppliers from any part of the EEC.
- Statutory Instrument No. 36 (Public works contracts)
- Statutory Instrument No. 37 (Public Supply Contracts)
- Statutory Instrument No. 38
This gives effect to the Council Directives concerning (i) the co-ordination of procedures for the award of public works contracts to which the Directives apply, and (ii) the abolition of restrictions on freedom to provide services in respect of public works contracts.
Contracting authorities must comply with the Council Directives which set out the tendering procedures to be followed for public works contracts, and the criteria to be followed by the authority when awarding the contracts on the basis of the tenders received. Any provision laid down by law, regulation or administrative action, which imposes or permits discrimination on the basis of nationality is now abolished. The use of technical specifications in advertisements to tender which have the effect of favouring or eliminating certain undertakings or products is prohibited.
The SI also stipulates that contracting authorities must state in their contract the source from which the tenderer may obtain information as to the applicable employment protection provisions.
Professional advisers may be asked about the procedures to be followed in respect of public works contracts, either by Irish clients who wish to tender abroad, or by foreign clients who wish to tender for such a works contract here.
This gives effect to the Council Directives concerning the co-ordination of procedures for the award of public supply contracts to which the Directives apply. It provides that contracting authorities must follow the procedures for awarding such contracts set out by the Directives and may not discriminate against non-national suppliers. They must also ensure that the technical specifications are not used so as to discriminate against particular undertakings or products.
(Review procedure for the award of public supply and public works contracts).
This implements Directive 89/665 which aims to oblige Member States to provide sufficient remedies under national law to those who have suffered as a result of a breach of the public procurement rules set out in the other Directives. The Directive emphasises that decisions taken by bodies responsible for review of procedures must be capable of being effectively enforced.
To this end, the body responsible for reviewing procedures in this jurisdiction is to be the High Court. The High Court may order interim measures to correct the alleged infringement or to prevent further damage, where such measures would have a beneficial effect.
The High Court may also, where appropriate, set aside unlawful decisions, by declaring a contract, or provisions of it, to be void, or by declaring that the contract shall have effect only subject to such variation as the court shall think fit.
It may also award damages to any person harmed by an infringement, where it considers this appropriate.
This review procedure seeks to maximise the effectiveness of the Community rules on public procurement with respect to public works contracts and public supply contracts. Any aggrieved client who feels that he has been deprived of a contract through an incorrect application of these rules should be advised of the possibilities offered by this procedure.
It should be remembered that clients also have the option of a direct complaint to the European Commission which may decide to initiate proceedings against the Member State if it considers that the state in question has failed in its duty to ensure the full application of Community rules on public procurement.