New national guidelines on national procurement published

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The Department of Public Expenditure and Reform has published new national guidelines on procurement, ‘Public Procurement Guidelines for Goods and Services’, July 2017 (“National Guidelines”).

The National Guidelines replace previous guidelines published by the Department, as follows:

  • Public Procurement Guidelines – Competitive Process (2010);
  • Public Procurement Guidelines – Competitive Process (2004);
  • The Green Book on Public Procurement issued by the Department of Finance in 1994.

The National Guidelines do not replace Circular 10/14: Initiatives to assist SMEs in Public Procurement, which should be read in conjunction with the National Guidelines.

Further, there are separate guidelines concerning the procurement of works and works related services.

National Guidelines

 The National Guidelines take account of the 2014 EU procurement Directives, as implemented in Ireland.

The current EU Directives on public procurement are:

  • Directive 2014/24/EU on public procurement (goods, services and works);
  • Directive 2014/25/EU on procurement by entities operating in the water, energy, transport and postal services sectors;
  • Directive 2014/23/EU on the award of Concession Contracts.

The EU Procurement Directives were transposed into Irish Law in 2016 by way of national Regulations contained in:

  • I. No. 284 of 2016, European Union (Award of Public Authority Contracts) Regulations 2016; and
  • I. No. 286 of 2016, European Union (Award of Contracts by Utility Undertakings) Regulations 2016; and
  • I. No. 203 of 2017, European Union (Award of Concession Contracts) Regulations 2017.

The stated objective of the National Guidelines is to “promote best practice and consistency of application of the public procurement rules in relation to the purchase of goods and services”.

Although the National Guidelines are not ‘intended as legal advice or a legal interpretation of Irish or EU law’ and are not binding on State bodies, non-compliance the National Guidelines may have corporate governance implications for State bodies.

Under the Code of Practice for the Governance of State Bodies (August 2016) the Board of a State body must be satisfied that the requirements for public procurement are adhered to and that procurement policies and procedures have been developed and published to all staff. The Chairperson’s Annual Report to the Minister requires an affirmation that all appropriate procedures for procurement are being carried out. Further procurement practices are subject to audit by the Comptroller and Auditor General.

State bodies are therefore advised to take account of the National Guidelines when procuring goods and services, in particular when procuring goods or services below the EU threshold values.

Below Threshold Purchases

The National Guidelines now provide, with respect to purchases which are below threshold:

  • contracts for goods and services with an estimated value of less than €5,000 (exclusive of VAT) can be purchased on the basis of verbal quotes from one or more competitive suppliers (best practice is to seek a minimum of 3 quotes confirmed by e-mail);
  • contracts for goods and services with an estimated value between €5,000 and €25,000 (exclusive of VAT) can be awarded on the basis of responses to written specifications (e.g. sent by email) to at least three suppliers or service providers;
  • contracts for goods and or services, with an estimated value of €25,000 (exclusive of VAT) and up to the value of the EU thresholds should normally be advertised as part of a formal tendering process on eTenders using the Open Procedure in line with DPER Circular 10/14.

The National Guidelines now also specify that, ‘as a general rule it is recommended that a minimum of 21 days be allowed for receipt of tenders where a more formal tendering process is used’. ‘

If you have any queries in relation to the above, please contact Judith Curtin.

The content of this article is provided for information purposes only and does not constitute legal or other advice.