(1) It will be necessary for the purposes of Audit to be able to provide information that shows that every effort was made to obtain a minimum of 3 written competitive quotes. (2) This threshold is updated every 2 years. The threshold of €139,000 came into effect on 1st January 2020.

All procurement competitions, which could involve expenditure in excess of €25,000, including VAT, must be referred, together with a business case, to the Director General for approval in advance of the procurement competition being conducted. In addition, all invoices to the value of €20,000, inclusive of VAT, should be approved by the Director General or in her absence by the Finance Officer.

All orders for goods / services must be accompanied by a Purchase Order number which is obtained from Finance Unit prior to the placing of an order with the supplier. Requests for POs should be sent by e-mail to riar@ombudsman.ie.  It should also be noted that there will be an increase in emphasis on the importance of having accurate and timely Purchase Orders for all goods and services procured under the Financial Management Shared Services Project, which is likely to go live for this Office in January 2022.  It is likely that it will not be possible to process a payment without a PO number.

Due account must be taken of the relevant Circulars and Office policies with regard to all expenditure, including expenditure on travel and subsistence, entertainment and credit cards.

Sanction will be obtained from DPER in advance of any special payments which fall under the section C.7.11 of the Public Financial Procedures https://govacc.per.gov.ie/wp-content/uploads/2012/05/SECTION-C.pdf

Managing Risk

The risks associated with a procurement process must be specifically addressed, having regard to the Office’s overall risk management processes.  This should be done where the purchase is high (i.e. over €25,000 excluding VAT); the procurement process is complex; adverse consequences could significantly affect the Office’s operation; and delivering the Office’s core services is significantly affected.  The risk should be included in the Office’s Risk Register where considered appropriate.

When risk is being considered with respect to procurement, the SRO should ensure that risk is assessed in relation to each category of goods and services.  Examples of risk assessment could include:  the nature of the supply market, e.g. does it favour the buyer or the supplier; the probability of supply failure; the impact on the Office of supply failure; and, the strategic importance of the good/service to the Office.

The Office has considered the potential risk resulting from the possibility of supply failure and the impact of the risk on services, particularly in the context of Brexit and Covid-19.  In particular, risk mitigation strategies need to be considered if there is risk attaching to critical contracts to ensure continuity of service.

Specific Categories of Expenditure

As expenditure on ICT and legal services accounts for approximately 78% of total non-pay expenditure, certain considerations must be taken into account for these categories.

ICT Expenditure

ICT expenditure is overseen by the Office of the Government Chief Information Officer (OGCIO) through its expenditure approval and reporting process. The provisions of circular 14/21: Arrangements for Oversight Digital and ICT related Initiatives in the Civil and Public

It should be noted in particular that:

• the prior specific approval of OGCIO, Digital Government Oversight Unit, is required each year for all new ICT-related expenditure or new ICT-related initiatives which may give rise to expenditure of €25,000 or greater, and
• all ICT procurement opportunities with a value of €25,000 or greater must be advertised on the eTenders website unless it is proposed to use a properly procured existing arrangement, central framework or other centrally established procurement vehicle

Legal Expenditure

The procurement process for the selection of an external legal services provider is currently underway with the assistance of OGP.  This process is being conducted under the new Framework which was concluded by OGP at the end of May 2021.   

The headline figures concerning legal expenditure in 2020 were as follows:

• Amounts of €137,000 and €349,000 were spent on external solicitors and barristers respectively during the course of the year 
• Court case related expenditure during 2020 amounted to €348,000 ( compared with €431,000 in 2019 and €552,000 in 2018). 

The table below provides a breakdown per office of the expenditure for 2020 compared with 2019 and 2018 (it should be noted that court hearings were disrupted in 2020 due to Covid-19 restrictions).

 

Year	Ombudsman	CPSA	OIC	OCEI	SIPO
2018	0	67	277	156	52
2019	23	0	236	106	66
2020	10	0	92	240	6

 

In relation to Court-related expenditure, a combination of the in-house legal services unit and the external legal advisors are used together with Counsel as required.  Senior Counsel may be used in exceptional circumstances.

Circular 05/13 https://circulars.gov.ie/pdf/circular/per/2013/05.pdf sets out guidelines for the procurement of legal services and managing legal costs in the civil service.  Staff embarking on a tendering process for legal services should be familiar with its provisions.  It states that it is a basic principle of public procurement that a competitive process should be used unless there are justifiable exceptional circumstances.  If the Office seek to rely on the justifiable exceptional circumstances provision, it must be approved in advance by the Director General and the reason must be clearly recorded and a verifiable audit trail be maintained.  The circular further states that best value for money must be obtained in all procurement including legal services and that a competitive process, based on appropriate advertising, as part of a transparent and objective tendering process is generally accepted as the means of achieving this.     The circular further requires public bodies to put in place internal protocols regulating the basis on which access to legal services may be available.

The internal protocol will be as follows:

• Requests for engagement of external legal services must initially be channelled through the Legal Unit; 
• Where advice or representation is required from counsel, the quoted fees of counsel should be agreed with the external legal service provider before counsel is instructed on their behalf.
• An estimate of the legal costs must be obtained from the external legal service providers at the outset of a court case (section 150 of the legal Services Regulation Act 2015 and the Bar Council Code concern estimates from solicitors and barristers respectively) and/or when the case has been appealed to a higher court. 
• Legal Services Unit should prepare a written recommendation outlining the reasons for any appeal of a Court judgment, including estimated cost.  The recommendation will be reviewed by the Office Holder(s) and the Director General for approval before any decision is taken to appeal a case to higher courts.  In the event of a difference of opinion, the Office Holder(s) may overrule the DG by setting out the reason(s) for the decision in writing.  This document will be presented at the annual C&AG audit.
• A single Purchase Order number will be assigned to each individual Court Case.  All invoices from external legal service providers will use that Purchase Order number. 
• Barrister's will be provided with a separate Purchase Order number for each case.
• The actual cost of each Court case should be monitored against the estimate and annual returns.  Legal Services Unit will be responsible for preparing annual returns and sending them to the Procurement Officer at end December each year and/or on conclusion of a court case.  Finance Unit will be responsible for providing expenditure figures to the Legal Services Unit to assist in this process.
• A post-action review is to be carried out by Legal Services Unit after the conclusion of each court case to be submitted to the Procurement Officer within 3 months of the conclusion of a case. 
• Billing from external legal service providers should be monthly on an individual case basis.  Every effort must be made to ensure that billing from counsel should be no less frequent than quarterly and this requirement should be indicated as part of the engagement process.
• The possible use of the services of the State Claims Agency in respect of managing claims for costs arising from court judgments, both in favour or against the Office, will continue to be pursued with the SCA.  Any such arrangement must not impact on the independence of the Office.

Direct Professional Access should only be used in exceptional circumstances (e.g. highly time-sensitive Referendum Commission campaign questions), as the Legal Unit is qualified to instruct Counsel.

If the Legal Unit engage outside Counsel directly, the procedure must be consistent with the procurement rules of the Office and Public Financial Procedures.  With regard to the setting up of panels it should be noted that circular 05/13 states that this can be done by inviting expressions of interest or tenders through the eTenders website (www.etenders.gov.ie) from those qualified and having the expertise to provide the specified service.  The Legal Unit will set up a new panel, on the basis of suitable criteria (including, as appropriate, competitive pricing criteria), every three years.  The current panel was created in 2020 and will thus be renewed in 2023 unless it becomes necessary to do so before that date.  As the counsel panel may include details of the fees to be charged it may not be necessary in all cases to seek three quotes.  When the Legal Unit is making the decision to engage a particular barrister for an item of work, it will email the Procurement Officer outlining the rationale for the decision.  This can be based on the exiting fees quoted, expertise and availability of counsel.  It is also best practice for the Legal Unit to rotate through the panel. Alternatively, a competitive process can be used to select a single legal service provider to provide the appropriate service over a given period (effectively a single party framework).

Governance and the Procurement Role of the Office

The Procurement Officer and the Finance Unit have overall responsibility for supporting the procurement function within the Office.  First and foremost, they are responsible for ensuring that the actions identified in this plan are delivered.  The onus remains on staff members directly involved in procuring goods and services to ensure that all procurements are in accordance with the overall strategic aims of the Office (e.g. the IT Unit is responsible for procuring IT goods and services, while the QSEC is responsible for procuring goods and services related to the production of annual and other reports).  

While it is appropriate that responsibility for securing certain goods and services rests with the staff members who possess the necessary relevant expertise to determine how best the demand may be met, it is important that those staff members are sufficiently skilled to deliver best procurement practice. Accordingly, the Procurement Officer also provides practical procurement advice and guidance, where required.  The Procurement Officer and the Finance Unit will ensure that all staff members involved in the procurement function are made aware of the Office’s internal procurement policy and are kept up to date with best practice in the procurement area. 

Competency in procurement will be considered in the context of the preparation of training and development plans for key staff involved in procurement.

Monthly meetings will be held involving the Director General, the Finance Officer, the Accountant and the Procurement Officer to discuss procurement and review the central list of contracts.  The Central List of Contracts will be used as a tool for planning future procurement requirements.

Senior Responsible Officer

Where a unit intends to undertake a procurement process, a Senior Responsible Officer (SRO) - at minimum Assistant Principal level for projects in excess of €25,000 excluding VAT - must be assigned within that section to take full responsibility for that procurement process and retains overall responsibility for the procurement throughout the process.  The SRO is the key contact with the Procurement Officer.

The SRO has responsibility to:

• Prepare the background for any procurement – recording the business case, ensuring that any necessary internal approvals are in place (including but not limited to a budget for duration of the contract) and that there is adequate amount of time in the procurement programme;
• Prepare tender documents, qualification criteria and award criteria and ensure compliance with the procurement rules and checking for completeness, accuracy and consistency prior to issuing to ensure they do not contain conflicting requirements;
• Ensure liaison with the OGP regarding existing frameworks, standard contracts and tender documents (in conjunction with the Procurement Officer);
• Appoint and brief the Evaluation Committee, where required;
• Ensure the accuracy of all statements of fact and claims made by the Evaluation Committee; 
• Report any concerns or perceived bias to or against any tenderer to the Procurement Officer; 

• Ensure that legally compliant standstill letters are drafted and issued, where appropriate;
• Ensure that a signed contract is in place before any service or goods are provided and that the original is passed on to the Procurement Officer; 
• Ensure that the Purchase Order requirements are adhered to.  This includes ensuring that Purchase Orders are raised for the full duration of the contract where applicable;
• Ensure that on receipt of an invoice, payment is made in line with Government policy (15 days - Office Notice 10/2009) and the EU Directive on combating late payments in commercial transactions (30 days – S.I. 580/12).  Suppliers should be informed, by the SRO, that invoices are to be sent to either riar@ombudsman.ie or posted to the Finance Unit, rather than an individual or unit;
• Monitor the quality of the goods/performance of the services provided by the supplier and take any necessary action as and when required in order to secure value-for-money for the Office;
• Provide the Procurement Officer with all documentation associated with the procurement process, on completion.  Documentation should be retained for 6 years plus the year of creation in line with the Office’s Records Retention Policy; 
• Provide the Procurement Officer with details on the name of the supplier, details of what the contract involves, type of procurement process undertaken, annual value of contract, and details on duration including possible extensions.  This information will be used to update the Central Contracts Register https://dms.ombudsman.ie/sites/Finance/_layouts/15/WopiFrame.aspx?sourcedoc={83A62363-0A60-4EF0-8EFF-9864FEF593A2}&file=Central%20list%20of%20contracts%202021.xlsx&action=default
• Provide details of the lessons learned from the procurement process to the Procurement Officer so that they can be considered in the context of the annual evaluation of procurement; and,
• Prepare annual statements, for each contract over €25,000, providing amount spent versus contract and analysis of any material change such as additions or potential significant overspend/underspend.

The SRO should be familiar with Article 84 of Directive 2014/24/EC (applies to contracts over EU threshold only) which requires that, for every contract, framework agreement or establishment of a dynamic purchasing system (above EU thresholds), a report should be prepared on the procurement process undertaken and the results of this process.  This report should be sent to the Procurement Officer.

Procurement Officer

The Department is required to have a nominated Procurement Officer under Department of Finance Circular 40/02.   The Procurement Officer will be appointed by the Director General and will report to the Finance Officer and the Director General.  

The role of the Procurement Officer should be independent of the procurement processes being undertaken.  While s/he may be present to observe and ensure that the evaluation is conducted in line with the appropriate guidelines and procedures, s/he will not have a vote on the evaluation process.   

The Procurement Officer will:

• Ensure that SROs are in compliance with these procedures;
• Work with the SRO on a ‘lessons learned’ following the completion of the procurement;
• Provide support and advice in advance and during a procurement process and reference to relevant documents and good practice;
• Monitor the opening of tenders and attend meetings of Evaluation Committees for contracts with a value in excess of €139,000 (exclusive of VAT);
• Maintain a Contracts Register (Central List of Contracts) and ensure that the appropriate reports are presented to the Director General; 
• Assign eTenders usernames and monitor eTenders website as required;
• Carry out internal reviews on a random sample of procurements (checking completeness, accuracy, compliance and consistency and that the tender evaluations are carried out in accordance with the published award criteria); and,
• Provide advice on the use of OGP’s Self-serve system for procurement processes under Framework agreements.

Tender Evaluation Committee

An Evaluation Committee is required for larger value contracts (above €25,000 exclusive of VAT) but can also be requested for medium value contracts if deemed appropriate by the SRO. 

The Evaluation Committee is a group of individuals assembled by the SRO, who together have the requisite knowledge and experience to evaluate tenders.  The Committee can include members from other Government Departments and subject matter experts. Each member of the Evaluation Committee is responsible for evaluating all tenders in a fair and unbiased fashion and in strict compliance with the evaluation methodology and the qualification and award criteria set out in the tender documents.   

At least two members of the Evaluation Committee must ensure that all manual tenders are opened together as soon as possible after the designated latest time and date set for receipt of tenders.  This must involve a clear and formal vouched report of the tenders received and a record of the opening of each tender must be maintained.  This is not necessary for eTenders competitions as the system provides for an audit trail.

Reporting to the Director General

The Procurement Officer will monitor all new procurements in excess of €25,000, excluding VAT, and a random sample of those below €25,000, to ensure they are in compliance with these procedures.  

The Procurement Officer will report any procurement issue that gives cause for concern to the Finance Officer and the Director General.  The Finance Officer or Procurement Officer will give a quarterly update to the Management Team.

Reporting to the Comptroller and Auditor General and OGP

Under Department of Finance Circular 40/02, an Annual Report (signed off by the Accounting Officer) in respect of contracts above a €25,000 threshold (exclusive of VAT) which have been awarded without a competitive process must be completed annually by each Government Department and forwarded to the C&AG by 31st March in respect of the preceding year.

Conflict of Interest

“Conflict of Interest” is defined in Regulation 24(2) of the European Union (Award of Public Authority Contracts) Regulations 2016 to include “any situation where a relevant staff member has directly or indirectly a financial, economic or other personal interest which might be perceived to compromise his or her impartiality and independence in the context of the procurement procedure”. By Regulation 24(1), contracting authorities are obliged to take appropriate measures to effectively prevent, identify and remedy conflicts of interest arising in the conduct of procurement procedures.

It is important to note that it is not necessary that a person’s impartiality and independence are actually compromised; a conflict of interest will arise where a person’s impartiality and independence are merely perceived to be comprised.  It is the responsibility of each staff member involved in the procurement process to ensure that any and all potential conflicts of interest are disclosed to the Procurement Officer (in writing prior to the person becoming involved in the tender evaluation process). The Office shall not permit a person to participate in a procurement procedure if that person has a conflict of interest within the meaning of Regulation 24(2) which cannot be remedied.

Value for Money

While price is a significant factor in determining value for money in procurement, it is not the only variable that needs to be considered.  Value for money also encompasses non-cost factors, such as whether the purchase is fit for the intended purpose, whether it is of sufficient quality and whether the level of service or support provided meets the organisation’s requirements.  Accordingly, when purchasing goods or services staff members should adhere to the following principles:

• Challenge whether or not goods / services to be procured are required at all;
• Ensure that the procurement is in keeping with the organisation’s strategic aims;
• Be clear about what the organisation wishes to procure;
• Allow sufficient time for the procurement;
• Consider if suitable alternatives would meet requirements of procurement; and,
• Comply with the general and organisational procedures and guidelines for procurement.

The responsibility for achieving value for money lies with all staff of the Office and does not rest solely with those who have financial responsibility.  All staff on the Management Team have a responsibility to ensure that best practice is followed in their own areas and that both they and staff are aware of and are implementing all updates in the procurement area, in particular that they are aware of all new and upcoming frameworks from the OGP.

Procurement Profile

The organisation’s budget is entirely administrative, with no programme expenditure and almost 74% of annual expenditure comprising payroll costs.   The non-pay estimate allocation in 2021 is €3.345m. 

The actual non-pay expenditure for 2020 amounted to €1.8m.  An analysis of 2020 non-pay expenditure using data provided from the organisation’s financial management system, JD Edwards, shows that payments were made to 208 suppliers in 2020.  100 suppliers (48%) received payments of less than €1,000 for the year, representing just over 1.1% of total non-pay expenditure.  On the other hand, 20 suppliers (less than 10%) received payments in excess of €20,000, representing 63% of total expenditure.  Details of the 20 suppliers in question are as set out in the following table:

Supplier	Goods Service Procured	Amount
Micromail	IT/Computer	€152,780.71
PFH Technology Group	IT/Computer	€128,598.80
Philip Lee Solicitors OIC	Legal - Solicitors	€128,113.48
Codec - DSS	IT/Computer	€96,753.62
Emily Egan S.C.	Legal - Barrister	€86,216.30
Brian Foley	Legal - Barrister	€67,939.18
Dell Computer (Ireland)	IT/Computer	€52,626.75
d-PIT Solutions	IT/Computer	€50,142.86
Francis Kieran	Legal - Barrister	€46,845.75
SSE Airtricity Ltd	Heat, Light and Fuel	€39,577.59
Fintan Valentine	Legal - Barrister	€38,766.81
Claire Hogan BL	Legal - Barrister	€37,558.80
Dept Digital Ltd.	IT/Computer	€30,315.59
Accent Solutions	Cleaning	€29,740.06
Dovetail Technologies	IT/Computer	€28,225.22
Damovo Ireland Ltd	IT/Computer	€28,004.55
Datapac	IT/Computer	€26,140.55
Shared Services  Vote (311 SSOF)	Corp Serv Support - NSSO	€22,723.72
Eoin Carolan B.L.	Legal - Barrister	€22,389.22
eCom Solutions	IT/Computer	€20,288.47
Total		€1,133,748.03

 

Legal Services account for 7 of the top 20 payees.  Measures such as the recruitment of an in-house legal advisor and an Office wide legal services contract have been introduced to minimise expenditure on legal fees.  The contracts for the supply of energy services (i.e. electricity) and for the provision of office maintenance services are managed by the OPW. 

Green Procurement and Social Considerations in Procurement (circular 20/2019)

Green Public Procurement is a process where public authorities seek to source goods, services or works with a reduced environmental impact. The appropriateness of including environmental measures in public procurement projects will vary from contract to contract. 

The Government has decided that proposals on the implementation of Green Public Procurement will be developed by the Department of Environment, Climate Action and Communications and the OGP. The main areas in which green procurement will have an impact on our Office are:

• Energy - which is purchased under an OGP framework;
• Cleaning products and services - which we procure directly;
• Office IT equipment - much of which is procured under OGP Frameworks; and,
• Paper - which is procured under an OGP framework

In this regard, OGP is committed to supporting the implementation process to ensure that green public procurement becomes part of the mainstream public procurement process.  The Irish regulations require tenderers to comply with applicable EU regulations and obligations in the field of environmental, social and labour law.  The OGP complies with these obligations in its Framework Agreements to procure common goods and services for public bodies. 

The Office will keep abreast of developments to ensure that we are in keeping with best practice.  It will ensure that the procurement process considers green issues from business case stage through to selection, award and contract stages.  The Department of Environment, Climate Action and Communications has undertaken to provide training to officials involved in procurement in the use of environmental considerations including how to consider and incorporate green procurement criteria appropriately.

The Department of Environment, Climate Action and Communications has introduced a requirement that 19 specified main Departments are required to report annually in their respective Annual Reports on progress in relation to green procurement. While not a requirement for our Office at this stage, it may be extended in the future.

The Office also needs to be aware of social considerations when procuring goods and services.  It is worth noting that a variety of social considerations are already included in public procurement processes and contracts as a result of statutory requirements. These include areas such as health and safety, equality and employment law.  The main social considerations that the Office needs to be aware of in the context of its procurement include:

• Seeking to prevent the use of child labour and other forms of labour exploitation;
• Preventing discrimination on the grounds provided for in the Equal Status Act 2000-18;
• Encouraging good employment practice;
• Reducing unemployment;
• Reducing social exclusion; and
• Facilitating access to work for people with disabilities.

It is also noted that the OGP has established a cross-departmental Social Considerations Advisory Group to promote and facilitate the incorporation of social considerations, including environmental considerations, into public procurement.  The Office will follow guidance from this body to ensure that it is incorporated into its procurement.

Review

The Procurement Officer will carry out an annual review of procurement to evaluate how procurement is being conducted in the Office. The Corporate Procurement Plan should be reviewed as required by the DG or the Finance Officer.