PAC Meeting | May 28, 2015
Chairman [John McGuinness TD]: Item 3A.5 is correspondence, dated 25 May 2015, from the HSE and is a follow-up to our meeting on 23 April 2015, which is to be noted and published. This issue relates to the procurement of investigators and the use of former staff of the health services. We are due to consider a report on this shortly. Has that report been circulated?
Clerk to the Committee: It has, yes.
Chairman: Can we determine that it is the final draft?
Deputy John Deasy: It is a short report but it is very strong. The work the clerk has put into this is excellent. The kernel of it boils down to chapter two and the recommendations at the end. What we have discovered is that when it comes to individuals it is not possible to put a specific ban on former employees of the HSE.
However, the step that needs to be taken is that authority to appoint investigators should be taken away from the HSE. That should be put to one side. That is effectively where we have gone with this.
Therefore, even though one cannot ban former employees specifically on a personal basis, taking these investigations away from the HSE, particularly the ones that are extremely sensitive and actually involve potential conflict of interest, is probably the appropriate step. I think that is what the Minister should consider.
I have spoken to the Minister of State, Deputy Kathleen Lynch. She is looking at this entire area, including the idea of putting panels together. The work of her office is working in tandem with the report that we have put together. There is an understanding that this area needs to be dealt with once and for all.
Chairman: In line with that report, I wish to raise an issue that was brought to my attention by way of correspondence, although I do not have it with me. An investigation took place concerning Kilkenny.
When the report arising from that investigation was sought, it was not released and neither were the details of the procurement process. Before finalising the report, we might ask that question of the HSE and determine the details surrounding it.
Deputy John Deasy: What is the next step with regard to that report? Will we issue the report on a certain date?
Chairman: We can do the final report in the week after next when we are back. We will publish it then.
PAC Meeting | May 14, 2015
Chairman [John McGuinness TD]: We were dealing with correspondence from the HSE which is a follow-up from the 23 April 2015 meeting. There are a number of other outstanding matters that the executive has to deal with but this correspondence answers some of the questions raised.
In the context of the HSE reflecting on our meeting I suggest that we forward a transcript of that meeting to the Garda Commissioner in light of the issues raised separately, relating to the home... and other matters. We are told the Garda is investigating. It is extremely lax on the part of the HSE and the Garda that this matter is not being dealt with in a more open way.
On one side there are approximately 30 young adults who have been affected by what happened there, but I get no sense from the HSE that there is an urgency about this or any desire to resolve it.
The position is likewise in respect of the investigation into the procurement process. That has not been rightly explained to us either. Perhaps the transcript may be of help to the Garda.
A protected disclosure was made, under legislation, on more than one occasion from more than one person, but nothing has happened since. The Garda Commissioner needs to understand that we have had our hearing, that protected disclosures have been made and that we would have expected a far greater urgency as a result of that meeting.
The care of these 30 or more individuals is a matter of concern to us. Given all the reports undertaken into incidents within the HSE one wonders whether the executive is fit for purpose at all. Perhaps the transcripts should also go to the Minister out of concern for the issues raised.
Deputy John Deasy: There is a good deal in this. As you have said, one of the issues the committee dealt with has to do with procurement and tendering. The Comptroller and Auditor General has carried out reports on the matter.
Across the board when it comes to the HSE it is clear that the executive is a bad actor, frankly, when it comes to tendering within public procurement guidelines. When it comes to the issue that you have just raised and what the committee has dealt with in recent weeks, the appropriateness of hiring former HSE employees to do reports for the HSE on issues as disturbing as those we have been dealing with is questionable.
When Mr. O'Brien was before the committee and questioned with regard to the process whereby the tender was awarded, he pointed to some regulations that needed to be followed. When he was questioned about whether they had been followed in that particular case and for the particular contract in question, it was clear that they had not because the procurement office said it had no communication with the HSE on the matter.
In hindsight the answer he gave was disingenuous. We have done a great deal of work when it comes to this issue as well as the tendering of contracts by the HSE and the potential conflicts of interest that arise when former employees of the HSE get these contracts.
We should put a formal proposal from the committee to the Minister to change this arrangement. Most of the work has already been done by the committee. It would be simple to do. The issues we have raised in the committee have not been raised in any other forum in the Oireachtas and therefore it is reasonable for us to do that.
. . . The Comptroller and Auditor General has done much work on procurement and HSE tendering. I will preface my comments by saying that one would wonder about value for money as far as the taxpayer is concerned when it comes to a contract being given to a former employee and individuals who were known within the organisation and who had been there for decades but it is far beyond that, frankly. The conflicts of interest that arise in these issues are incredibly disturbing and far supersede that consideration.
The premise is in place. You have done a great deal of work in this area, Chairman, as has the Comptroller and Auditor General. Perhaps you could feed into any report that the committee might do. That would be useful. Rather than simply point out the position, we should come up with a solution.
I think we should come up with a clear determination, as a committee, about what should not happen when it comes to the issuing of a contract by the HSE. This should include an absolute bar on individuals who are former employees of the HSE getting these contracts. I believe that step will need to be considered by the Minister and we should make that recommendation and consideration.
Mr. Seamus McCarthy [C&AG]: The only comment I would make in that regard is that there may be a problem in law in respect of making a restriction completely debaring people who have legitimately set up in business from tendering for work.
The complication in this case was that it was people, who had previously worked for or who had been previously engaged with the HSE, who were appointed without any competition.
Deputy John Deasy: If the Government is prepared to pass a law that prevents politicians or former politicians lobbying their former colleagues, I do not see a problem with the Government passing a law preventing former employees of the HSE getting contracts as it applies to cases like these. Anything can be achieved if enough thought and consideration is given to it. I understand Mr. McCarthy's point, but if the will is there and the potential conflicts are understood well enough by the Department, it can probably do that too.
Seamus McCarthy: I do not want to argue for or against the proposition the Deputy is making because it comes into a policy area. I am just saying there may be a restriction in terms of the contestability of the issue and excluding certain categories. However, it is a matter that can be looked into.
Chairman: We can bring forward a draft report that we will present to the Minister in a short format. We can then discuss it and members can decide on recommendations, such as the one Deputy Deasy is putting forward.
It is clear, in the context of all these reports, that there is a crisis in the management of the HSE. No political system or Minister could manage the HSE the way it is. It will appear before the Joint Committee on Health and Children this morning.
The stonewalling that goes on when one is trying to sort out a problem is just incredible. It is unacceptable and somebody will have to do something about it. My concern is that while we are discussing this and while we had our meeting with the HSE and are now going to bring forward this short report with recommendations, there are individuals out there who are suffering because of it and nobody seems to mind.
The system seems to be conditioned to a high level of acceptance of this stuff going on. It is not acceptable. That is what members are saying in the context of trying to achieve balance and a change. Somebody has to change the system in the interest of justice and fair play. It is all one side at the moment and no one seems to be paying a bit of notice to any of the public hearings that are going on.
That is not acceptable. We will have this short report as soon as possible. We will put it before the members and then we can decide what is necessary.
PAC Meeting | Feb 5, 2015
Chairman (Deputy John McGuinness): No. 4.2 relates to St. Patrick's College in Drumcondra....
Deputy John Deasy: The note mentions non-compliance with public procurement contracts. Can the Comptroller and Auditor General give members an idea of the kind of non-compliance that occurred and how much was involved?
Comptroller and Auditor General, Mr. Seamus McCarthy: We looked at a number of contracts or procurements in the year and found procurement totalling approximately €1.6 million that had not been subjected to competitive tendering. It included things like cleaning and catering services, gas and electricity supply and electrical services.
Deputy John Deasy: That is a lot of money and is a wholesale ignoring of procurement policy.
Seamus McCarthy: Of procurement rules.
Deputy John Deasy: Has the Comptroller and Auditor General seen anything as bad as that?
Seamus McCarthy: We certainly have found difficulties regarding procurement in other colleges. The Deputy may recall that when the National College of Art and Design appeared before the committee, what we found there was almost complete non-competitive tendering for services and goods.
However, there have been other colleges over the years to whose attention we have been drawing in management letters the fact they were not compliant. We also have drawn attention in the audit opinion where a significant level of procurement is not tendered competitively.
Deputy John Deasy: I seem to remember a couple of colleges being the same way. Outside of the scrutiny the Comptroller and Auditor General gives in this regard, is it really the responsibility of the Department to enforce procurement policies? Who governs this area?
Seamus McCarthy: The code of governance requires the chairman of the governing body of each institution to confirm it is compliant. In a situation in which a college is not compliant, it would be obliged to explain why it is not compliant and what steps it is taking to rectify the situation. In effect, that is what we have been pushing with the colleges. Those compliance statements are submitted to the Higher Education Authority.
Deputy John Deasy: Can the Comptroller and Auditor General give members an indication of the general tenor of the response as to why the public procurement policies were not followed, as the practice was so widespread?
Seamus McCarthy: In general, the procurement process is time-consuming. It is expensive and there are many steps through which one must go. It may be a matter of convenience that a contract that is in place is rolled over for a transitional period. There could be things like a sole supplier where the institution is only able to identify one supplier of a particular product.
Deputy John Deasy: The Comptroller and Auditor General is saying there is a problem in this area in this sector. It is not just this college but across the board, in organisations and entities like this, that the guidelines are being disregarded.
Seamus McCarthy: I think the performance is variable. Some colleges have a quite professional procurement service and are procuring competitively on a routine basis. In other cases, perhaps for individual reasons in individual contracts, there may be a legitimate or an acceptable reason for rolling it over.
However, where there is non-competitive procurement, it exposes a college or a public body to the risk of a case being taken against it by a bidder or potential bidder who might have wished to submit a tender for a service not being allowed to so do. There is of course also the problem that the college or public body may not be getting good value in the procurement.
Chairman: In this case, would the head of the board be obliged to sign off even though it had not gone through the proper channels?
Seamus McCarthy: The chairman of the governing body is required to confirm to the HEA each year that it has adhered to proper public procurement procedures. If that has not been done, then the obligation would be on the governing body not to confirm that it had complied but to explain that it had not, as well as to explain why it had not and what it was doing to remedy the situation.
Deputy John Deasy: What happened in this case?
Seamus McCarthy: Offhand, I cannot say.
Chairman: Can the committee write again to the HEA in respect of this matter to ask how many colleges nationwide have followed this procedure? Would this be an easy way to do it?
Seamus McCarthy: It probably also is something at which we will look in looking at HEA oversight of bodies, namely, whether it is getting the declarations and whether it is following up on them where there is apparent non-compliance.