Was Attorney General consulted on new tender price for Children’s Hospital?

At the Order of Business in the Dáil today, Labour Party Leader Brendan Howlin questioned the Taoiseach as to whether the revised tender price for the main build of the National Children’s Hospital, as approved by the Cabinet before Christmas was considered by the Attorney General to be compliant with EU procurement directives.

Deputy Howlin said:

“The Taoiseach has assured me today that the tender for the NCH is fully compliant with EU procurement directive. However, the Taoiseach was unable to confirm that in approving this new tender price, that the Attorney General expressed confidence that the rules were followed.

“The public tender process in Ireland is governed by Directive 2014/24/EU, on public procurement.  Article 72 of that directive makes it clear that a new procurement procedure, that is, a new tendering process, is required if the provisions of a public contract are modified during the term of that contract.  What constitutes modification, including price increases, is set out.

“The directive says some modifications are permitted if they are provided for “in clear, precise and unequivocal review clauses”.  If, however, the modifications relate to “additional works, services or supplies” that are “not included in the initial procurement”, any increase in price must not exceed 50% of the value of the original contract.

“Objectively, it is hard to see how a procurement which is clearly in excess of 50% of the original bid price can comply with this Directive.

“The purpose of those rules is obviously to ensure everybody is on a level playing field. 

“It is now not clear if the procurement procedure for the National Children’s Hospital complies with Directive 2014/24/EU despite the Taoiseach’s statement today.

“The legal uncertainty this has created must be addressed.”