What is Wrong with this Picture?

EirGrid have caused to be published on the e-tenders page (not something your average citizen reads on a daily basis) the following call for tenders:

‘ENQEIR406 –  Electric and Magnetic Fields (EMF) Consultancy Services

Detailed description

EirGrid receives a wide range of queries from the general public regarding electric and magnetic fields, commonly referred to as EMF, which are associated with, but not unique to, transmission lines and underground cables. EirGrid requires the services of a specialist consultant to help with the management of these queries and provide specialist support on this topic.

The procurement of this contract is being carried out using the negotiated procedure. All of the information required to submit a valid tender response is provided in the RFP. The closing date for receipt of completed tenders is 26/03/2014.”

https://irl.eu-supply.com/app/rfq/rwlentrance_s.asp?PID=74426&PP=transactions.asp&B=&PS=1

The tendering for, and subsequent awarding of, goods and services paid for with taxpayer’s money is an extremely complicated and supposedly heavily regulated procedure, ostensibly in a bid to stamp out governmental corruption.

“Public service contracts” are defined in the rules as public contracts other than public works or supply contracts having as their object the provision of services referred to in Annex II to the Directive (Regulations, Schedule 2).

“Services” are listed and classified in the rules as either Annex II A or Annex II B services.

The classification of services is dependent on whether (in the opinion of the European Commission at the time the lists were being drawn up), contracts for the services in question were likely to be of interest to tenderers from other Member States (in which case they were categorised as Part A “priority services”) or of national interest only (in which case they were categorised as Part B “non-priority services”).

Part A services include under category 12, architectural services, engineering services, urban planning and landscape engineering services, related scientific and technical consulting services, technical testing and analysis services.

The fact that the leading expert in this area is Prof. Dennis Henshaw, a British national, means that the Invitation to Tender should be a Category A tender, and one assumes that this tender went out to the whole of the EU.  What it also means is that irrespective of the value of such a contract, it is subject to the usual rules of transparency and equal treatment of tenderers.

The fact that this exercise was carried out as a consultancy tender in the first place is puzzling. Why not offer a position advertised in the national newspapers, either on a fixed-term contract basis or on a specific-purpose contract basis and thereafter conduct an employment interview with interested applicants? This would be an altogether more transparent process.

But that is not the all of it. Rather than opt for the open tender procedure, which Government departments are obliged to view as the default procedure for any publically funded contract, Eirgrid have stipulated that they will be using the negotiated procedure.

The negotiated procedure is defined as “those national procedures whereby contracting authorities consult tenderers of their choiceand negotiate the terms of the contract with one or more of them” (Article 1.11 (d), Regulation 3 (1)). Does this mean that EirGrid will only entertain experts in the field that agree with the views of their existing ‘experts’ already on the payroll?

What it is critical to understand is that the rules strictly prescribe the circumstances in which the negotiated procedure may be used.  Assuming that there has been proper advertising, the rules set out three circumstances in which the negotiated procedure with advertisement can be used for the procurement of contracts (Article 30, Regulation 31 (1)).

1.   .    Where the contracting authority has received only “irregular” or “unacceptable” tenders in response to an open, restricted or competitive dialogue procedure, provided that the terms of the original contract as advertised are not “substantially altered” (Article 30.1 (a), Regulation 31 (1)(a)). Since a switch of procedure amounts to a new procurement process, the general rule is that the contracting authority should re-advertise the contract. In an exception to this rule, re-advertisement is not required where all qualified tenderers, who complied with tender formalities are invited to tender.

Unless EirGrid can show that they have previously advertised this service, this justification does not apply.

2.       Whenever the exact scope of the works and the apportionment of risk are not known at the outset of the procurement process.

This is a fairly bog-standard consultancy agreement for services, not goods. The contract template is supplied with the Invitation.  It is interesting to note that the contract is in the form of a framework contract, which means you (and others) might secure the tender but still not be called upon to provide services. You can be successful but thereafter held in limbo.

3.       When the works involved are carried out solely for the purpose of research and development or experiment and not with a view to establishing commercial viability or recovering research and development costs (Article 30.1(d), Regulation 31 (1)(d)).

EirGrid might be able to argue that this is the case, but then that further begs the question – if it is a simple research post – why not advertise it as a special-purpose employment contract in the ordinary newspapers? Why make use of a restrictive procedure with overtones of secrecy and ‘exceptional circumstances’?

Is this an appropriate way to do business, as a State funded institution, particularly when the public are already inherently suspicious of anything you do?

This also amounts to a culpable admission by EirGrid , which might explain the secrecy, that despite not having the requisite expertise within their organisation, they were prepared to make public statements on national television, the print media, and to the Oireachtas, that electricity cables carried on pylons did not constitute a health risk.

It will also increase pressure on Mr Rabbitte to respond to demands by Fianna Fail to have the Irish expert on EMF, Dr Graham Roberts, included on the review panel headed by former Supreme Court judge, Catherine McGuinness.

About Neil van Dokkum

Neil van Dokkum (B. SocSc; LLB; LLM; PGC Con.Lit) Neil is a law lecturer and has been so since arriving in Ireland from South Africa in 2002. Prior to that Neil worked in a leading firm of solicitors from 1987-1992, before being admitted as an Advocate of the Supreme Court of South Africa (a barrister) in 1992. He published three books in South Africa on employment law and unfair dismissal, as well as being published in numerous national and international peer-reviewed journals. Neil currently specialises in employment law, medical negligence law, family law and child protection law. He dabbles in EU law (procurement and energy). Neil retired from practice in 2002 to take up a full-time lecturing post. He has published three books since then, “Nursing Law for Irish Students (2005); “Evidence” (2007); and “Nursing Law for Students in Ireland” (2011). He is an accredited and practising mediator and is busy writing a book, with Dr Sinead Conneely, on Mediation in Ireland. His current interest is Ireland’s energy policy and its impact on the people and the environment. He is also researching the area of disability as a politico-economic construct. Neil is very happily married to Fiona, and they have two sons, Rory and Ian.
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