Policy Submission to the New Government

1. SUPPORT ACCELERATED PROJECT DELIVERY
2. BE BASED ON A BUSINESS CASE
3. BE EASIER TO MANAGE

December 2024

©Bid Services

Introduction

Bid Services (https://www.bidservices.ie) has supported hundreds of tenderers in winning public contracts since 2007. Our sister company, Public Procurement Services (http://www.publicprocurement.ie), has advised more than a hundred contracting authorities on procurements to a contract value over €2.25 billion in the past two years. 

Based on this considerable procurement experience and reflecting the views of tenderers, we submit the following recommendations with the aim of making the running of tender competitions more streamlined, cost efficient and user friendly, while always being compliant.

In most cases, the procurement rules deliver good outcomes. That said, and in anticipation of further reform at EU level, there is room for improvement.

There is heightened awareness that we need to get value for money when the Exchequer procures services, supplies (goods) and works. The Oireachtas bike shed and the National Children’s Hospital are but two cases to point. 

There is also a recognition that it can take far too long to deliver many projects, even small works contracts.

It is evident that elements of the current procurement rules are no longer fit for purpose for a bursting resource-constrained economy with a significant Exchequer surplus.

Just ask tenderers. They bid less frequently, at higher prices, and when they do win tenders, they often find it hard to recruit skilled personnel.

Here are our proposals for change.Office of Government Procurement

1. Office of Government Procurement

• The Office of Government Procurement (OGP) – at present a division within the Department of Public Expenditure, NDP Delivery and Reform (DPENDPR) – should be set up as an independent statutory regulatory body and be covered by the Code of Practice for the governance of state bodies.
• The OGP’s remit should be extended to give it authority to enforce compliance by contracting authorities (including utilities) with the procurement rules for contracts valued over the EU value threshold.
• An annual report should be submitted to the Oireachtas covering the activities of all contracting authorities, including an assessment of the reasons where non-compliance persists.
• The minutes of the OGP’s SME Advisory Group and supporting documentation should be published on the OGP’s website promptly.
• In the interest of transparency, the OGP should publish an organisation chart and identify the names and contact details of all senior personnel, including Category Managers.
• An effectiveness review of the Tenders Advisory Service should be undertaken as feedback suggests it is not assisting tenderers in the way that was originally intended.
• Documents and presentations – practically all of which are discoverable under the FOI rules – currently made available exclusively to the public sector should be published on the OGP’s website.
• In anticipation of amendments to the EU Procurement Directives (in 2027), the OGP should take a national leadership role to gather and communicate proposals for change at EU level that address the specific characteristics of tendering in Ireland.
• The OGP should publish an assessment of the UK’s Procurement Act (2023) and identify possible areas for improvement in Irish procedures and practices.

2. Preparing a Business Case

• DPENDPR guidance should be issued requiring all contracting authorities to base proposed procurements valued over €50,000 (supplies and services) and €1m (works) on an approved business case.
• DPENDPR should provide templates for the completion of business cases for tender competitions at different contract values.
• DPENDPR should publish a podcast on best practice in preparing a business case.
• DPENDPR should procure professional advisors (under the OGP framework for business consultancy services) to provide help desk support contracting authorities in the preparation of business cases not covered by DPENDPR’s (December 2023) Investment Guidelines i.e. lower value contracts.

3. Additional Guidance

• OGP guidance is required in relation to:
  • the practical steps that should be taken to manage a negotiated procedure without prior publication under Regulation 32.
  • best practice in preparing technical specifications.
  • the consideration of abnormally low priced tenders during the evaluation process.
  • contracting authorities’ responses to clarification questions.
  • preventative actions that will reduce the risk of legal challenges.
• The OGP should produce more podcasts to support current and new guidance documents.
• All contracting authorities covered by the Utilities Directive should comply with OGP guidance.
• Reporting under Circular 40/02 in relation to non-compliance should be changed to cover contracts valued over €50,000.
• Contracting authorities should be briefed on a regular basis by the OGP about the implications of court rulings/case law in relation to procurement.

4. Corporate Procurement Plans

• All contracting authorities should be required to prepare and publish a Corporate Procurement Plan (with a level of detail in proportion to the value of procured expenditure).
• The OGP should provide an editable CPP template (as was done previously by the NPPU).
• The CIPS’s Kraljic matrix, or an equivalent, should be used.
• The OGP should publish a ‘How To Prepare a CPP’ podcast.

5. OGP Templates

• The current suite of RFTs/TRDs/contracts should be updated and revised, not least to take account of the new rules on green public procurement (GPP).
• The OGP should publish RFT/TRD templates for under EU threshold tender competitions and for sub-€50,000 RFQs.
• A separate RFT for above EU threshold competitions (supplies and services) should be prepared that excludes the provisions (Declarations) in relation to the Foreign Subsidies Regulations.

6. OGP Contracts

• All OGP contracts should be updated and revised, not least to take account of the new rules on GPP.
• The concerns of ICT tenderers in relation to some contract provisions, including the liability cap and intellectual property rights should be addressed as a priority.
• Appendix 4 (Personal Circumstances of Tenderers) should be dropped as a standard enclosure to RFTs – the ESPD covers the same provisions.
• OGP should publish a podcast on the steps required to complete a template supplies and services contract.
• OGP should remove Appendices 5 and 6 from the template RFT for supplies and services and instruct contracting authorities to publish the contract (and the Confidentiality Agreement) as separate editable Word documents with the Contract Notice – this will help contracting authorities complete these documents at the stage of contract award.

7. eTenders

• In contrast to current arrangements, only essential (national) data should be sought in the generation of Contract Notices valued under the EU threshold.
• Tenders under €50,000 (and €100,000 from 1^st January 2026) should not have to be published and managed via eTenders where contracting authorities have robust internal procedures and systems to approve and monitor public expenditure.
• Only tenders valued over €50,000 should require the publication of a Contract Award Notice. The current requirement for the publication of a CAN for contracts valued over €25,000 is arguably a waste of scarce resources and adds no value to tenderers as in most case the contract price is never revealed.
• OGP should greatly simplify the Contract Award Notice requirements for sub-EU threshold tenders – applying prescriptive EU rules to low value tenders is arguably a disproportionate requirement.
• DPENDPR should instruct all contracting authorities to publish the total value of the contract in a Contract Award Notice – not individual cost elements. It should also be clarified that contracting authorities cannot rely on the grounds of ‘commercial sensitivity’ in relation to contracts funded by the Exchequer. 
• The tender upload and submission process should be greatly simplified.

8. Green Public Procurement

• The Climate Action Plan 2025 should set a target for the period of the second carbon budget in relation to the potential contribution of GPP in terms of lowering (legally binding) greenhouse gas emissions and in improving energy efficiency.
• Primary legislation should be introduced to give effect to those elements of Government policy on GPP not covered by the EU Procurement Directives – such a reporting, verification and monitoring.
• DPENDPR guidance on the implementation of the Government’s GPP Strategy and Action Plan should published as a top priority – there is considerable uncertainty about the practical effects of GPP rules in the absence of a DPENDPR circular.
• The requirement to apply GPP award criteria (typically between 5% to 10%) should be raised to the EU value threshold until 1^st January 2027 i.e. until such time as Irish tenderers are trained and upskilled to meet demanding GPP requirements. This does not prevent contracting authorities setting contract specific technical specifications and selection criteria.
• The OGP and not the EPA should assume overall responsibility for GPP compliance, monitoring and reporting. 

9. Social Considerations in Procurement

• An updated version of Circular 20/2019 on the mandatory use of socially responsible public procurement should be delayed until the new EU Public Contracts Directive is implemented in Ireland.
• In the meantime, and as a priority, the OGP should submit a paper on social considerations in procurement for public consultation.
• This paper should be informed by the National Social Enterprise Policy (2024-2027), the Action Plan for Apprenticeship, latest guidance at EU level, case studies and the Northern Ireland Executive’s Procurement Policy Notice 01/21 on scoring social value.

10. Frameworks /DPSs

• To facilitate access by small firms and Irish SMEs, Framework and DPS Members that do not respond – without adequate justification – to four consecutive mini-competitions,  should be removed from the Framework/DPS Agreement as a condition of contract. 
• Framework Agreements/DPSs should apply to supplies and services contracts valued over €50,000 only. 
• Mini-competitions should only be used for contracts valued over €100,000. A direct award – using a cascade system for example – should be encouraged for lower valued contracts.
• The OGP should publish a template RFT/contract that contracting authorities could use when publishing a framework/DPS.
• When frameworks need to be re-tendered, the OGP should consider using a DPS as an alternative.
• No more than ten Framework Members by lot should be admitted to new and re-tendered framework arrangements. In one recent OGP tender upwards of 35 Framework Members may be appointed. This defeats the purpose of a framework.
• The names of Framework and DPS Members should be published.

11. Works Procurement

• All contracting authorities tendering for works contracts valued over €20m should be required to use the competitive procedure with negotiation/competitive dialogue. This practice will result in contracting authorities’ requirements being better aligned to what contractors can offer (and price).
• To ensure better compliance and a higher emphasis on securing Value for Money, contracting authorities should be required to appoint a Procurement Process Auditor for all works contracts valued over €20m. PPAs should be procured under the OGP Procurement DPS.
• Reflecting the value of works contracts, and especially the potential contribution of capital expenditure projects to meeting national emissions reductions and energy efficiency targets, the OGP should re-allocate at least ten personnel to support the OGP Works Desk (or to a Department of Infrastructure if such a contracting authority is established).
• In consultation with procurement advisors and other stakeholders, and in a collaborative manner, a complete and radical overhaul of the CWMF should be completed by the end of 2025. OGP Procurement DPS Members (Category 5) should be contracted by the OGP to support and advise on this reform programme. Interim (and welcomed) improvements to date have not addressed many of the fundamental problems of the CWMF.
• The Suitability Assessment Questionnaire should be replaced by a shorter Tender Response Document with one signature required.
• A simpler suite of documents should be drawn up for small works tenders under the EU value threshold (€5.5m).
• Only the preferred tenderer should be required to submit evidentiary documentation.
• Contracting authorities should be instructed to procure construction professionals – by way of a DPS Agreement in preference – outside the remit of the CWMF.
• As maintenance services are not listed as ‘works’ in the 2014 Public Contracts Directive, this activity should be procured by way of an OGP service RFT/contract and not though the CWMF.
• Elements of the UK’s Construction Playbook (PPN 09/20) should be incorporated into revised CWMF guidelines.

12. Procurement Training

• A Commercial Training Academy for supplies and services procurement should be procured by the OGP using the DPS for Procurement Advisors (Category 3).
• OGP should publish a series of podcasts to support procurement personnel, for example in relation to completing and publishing RFQs under €50,000.

13. Tender Evaluations

• A panel of independent and experienced chairpersons (procured from the DPS for Procurement Advisors (Category 2) should be appointed to all significant procurements (over €5m for supplies and services and €20m for works).
• Practical (as distinct from legal) guidance should be issued by the OGP to contracting authorities in relation to the correct and compliant conduct of tender evaluations.
• OGP should provide a Tender Evaluation Report template as part of this guidance.
• OGP should require contracting authorities to complete tender evaluations within two months of the tender submission deadline for lower valued contracts, and to inform tenderers should there be a delay in the process.
• By way of a Circular to Accounting Officers/CEOs, DPENDPR should require that the High Court ruling (Kildare CoCo versus RPS Engineering) on the provision of detailed feedback to tenderers should apply to all procurements valued over €50,000 (and €100,000 from 2027).

14. Initiatives to Support Small Firms

• On the grounds that no cross-border tenderers are likely to bid (given the low value of the contract) and where suitable suppliers have been identified, only small firms (those employing less than 50) should be asked by contracting authorities to submit RFQs for sub-€50,000 tenders where routine and non-specialised requirements need to be purchased – the limit increasing to €100,000 by 2027.
• The Go-2-Tender programme could be re-focused – currently eligibility rules require participants to have a cross-border dimension.
• The OGP should procure a panel of service providers from the DPS for Procurement Advisors (Category 3) to train and support tenderers in submitting bids.
• If the OGP decides to require tenderers to submit tenders onto the eTenders platform this should not happen until Ireland’s tenderers are fully consulted and supported with training collateral. The system must be stress tested before it goes live.
• The OGP should procure a Tenders Appeals Services to be delivered by a panel of DPS Procurement Advisors (Category 2) (so as to avoid conflicts of interest), or expand the remit of a revamped Tender Advisory Service to cover mediation, for example in relation to appeals to contracting authorities from unsuccessful tenderers. A fee should be charged for such services.

15. Procurement Know How Portal

• OGP should procure and give contracting authorities the elements of a template procurement portal, including hyperlinks to all source documents and model forms.
• OGP templates/model forms/contracts should be published in Word versions.  

16. Procurement Advisor DPS Members

• The OGP should convene and chair a Procurement Advisor’s Forum with the aim of capturing the insights, feedback and knowledge of DPS Procurement Advisors (all Categories).
• DPS Members (all Categories) should be invited as observers to OGP’s procurement events, as appropriate.

17. Use-Friendly Digital Strategy

• Following stakeholder consultation, OGP should list three priority actions to be delivered in 2025 on foot of the OECD Digital Transformation Report.
• OGP should prepare a briefing paper by Q3/2025 on the use of AI in procurement for stakeholder consultation having regard to the EU AI Act.

Conclusions

Much has been achieved – procurement has become professionalised to a large extent.

Procurement is now a critical part of the public sector reform programme.

Yet one could be forgiven for thinking – based on its generally poor overall profile – that procurement is still not seen as strategic function or as a professional occupation.

While great strides have been made over the past decade, it is timely that a series of practical improvements are made in terms of policy, processes and standard operating procedures.

There is a need to reduce procurement transaction costs; to limit the number of contracts going to commercial entities registered outside Ireland; to achieve better economies of scale; and, to take a proactive approach to facilitate Irish small firms secure more government contracts, especially outside the Dublin Region.

We submit these evidenced-based proposals in a constructive spirit.

We encourage tenderers and contracting authorities to engage in the debate on the practical steps that should be taken to improve the current system and processes to the mutual benefit of all parties.

9^th December 2024 

peter@bidservices.ie