Regulation and compliance

Licensing procedures

Must foreign designers and contractors be licensed locally to work and, if so, what are the consequences of working without a licence?

Construction workers do not require a licence to work locally in Ireland. However, certain types of consultants and designers, such as architects and quantity surveyors, will need to be registered with the appropriate body (eg, in the case of architects, with the Royal Institute of the Architects of Ireland).

Similarly, tradesmen involved in heating or electrical installation may require registration with the relevant trade organisations (eg, the Registered Electrical Contractors of Ireland).

In addition, if consultants or designers are involved in the auction of property, the purchase or sale of land, the letting of land or property management services (where residential units are included), then the contractor will require a licence under the Property Services (Regulation) Act 2011.

The government’s aim is for the Construction Industry Register to be the primary resource used by consumers in the public and private procurement of construction services, and therefore registration is likely to become mandatory.

Competition

Do local laws provide any advantage to domestic contractors in competition with foreign contractors?

No, Irish laws do not afford any competitive advantage to domestic contractors.

Competition protections

What legal protections exist to ensure fair and open competition to secure contracts with public entities, and to prevent bid rigging or other anticompetitive behaviour?

Irish law includes rules on public procurement and competition that require public contracts to be subject to open competitions in which bidders must act independently. The relevant laws are closely based on the provisions of article 101 of the Treaty on the Functioning of the European Union and the 2014 Public Sector and Remedies Procurement Directives.

Bribery

If a contractor has illegally obtained the award of a contract, for example by bribery, will the contract be enforceable? Are bribe-givers and bribe-takers prosecuted and, if so, what are the penalties they face? Are facilitation payments allowable under local law?

The principal statutory source of bribery law is the Criminal Justice (Corruption Offences) Act 2018 (the Corruption Offences Act). This legislation, which was commenced on 30 July 2018, repealed the Public Bodies Corrupt Practices Act 1889 and the Prevention of Corruption Acts 1906–2010, and modernised and consolidated the law in this area. Under the Corruption Offences Act, it is an offence for any person to corruptly give to, or accept from a person, a ‘gift, consideration or advantage’ as an inducement to, reward for or on account of any person doing an act in relation to his or her office, employment, position or business. It is also an offence for any person to corruptly give or accept a ‘gift, consideration or advantage’ to induce another person to exert improper influence over an act of an official in relation to that official’s office, employment, position or business. Similarly, it is an offence for an Irish official to do any act or use any confidential information in relation to his or her office to corruptly obtain a ‘gift, consideration or advantage’. Under the Corruption Offences Act, ‘corruptly’ is defined widely and includes acting with an improper purpose personally or by influencing another person, whether by means of making a false or misleading statement, by means of withholding, concealing, altering or destroying a document or other information, or by other means.

A person guilty of an offence under the Corruption Offences Act is liable on summary conviction to a fine of up to €5,000, imprisonment for a term not exceeding 12 months or an order for the forfeiture of property, or both. A person convicted on indictment is liable to an unlimited fine, imprisonment of up to 10 years or an order for the forfeiture of property, or both. In the case of a public official, a court may order that he or she be removed from his or her position as a public officer. The court can also prohibit those convicted of corruption offences from seeking public appointment for up to 10 years.

If a contractor has illegally obtained the award of a contract through bribery, it will be a matter for the courts to determine if the contract is enforceable. To date, a small amount of domestic bribery law enforcement has taken place, and this has focused on bribery of Irish public officials.

There is no distinction drawn in Irish law between facilitation payments and other types of corrupt payments. As such, a facilitation payment will be illegal if it has the elements of the offences described in this question.

Reporting bribery

Under local law, must employees of the project team members report suspicion or knowledge of bribery of government employees and, if so, what are the penalties for failure to report?

Section 19 of the Criminal Justice Act 2011 (the 2011 Act) introduced a general obligation to report to the Irish police information that a person or company knows or believes might be of material assistance in preventing the commission of a corruption offence or securing the arrest, prosecution or conviction of another person for a corruption offence.

The 2011 Act makes it an offence for a person to fail without reasonable excuse to disclose information as required by section 19. An individual guilty of this offence is liable on summary conviction to a fine of up to €5,000, a term of imprisonment not exceeding 12 months or both. On indictment, an individual may be liable to an unlimited fine, imprisonment for up to five years or both.

Under the Protected Disclosures Act 2014, any employee who makes a disclosure to the Irish police regarding a suspected offence is protected from dismissal and penalisation by their employer.

Political contributions

Is the making of political contributions part of doing business? If so, are there laws that restrict the ability of contractors or design professionals to work for public agencies because of their financial support for political candidates or parties?

Persons are free to make political donations subject only to the restrictions set out in the Electoral Acts 1997–2012 (the Electoral Acts) and guidelines published by the Standards in Public Office Commission (the Guidelines).

The Electoral Acts and the Guidelines provide that a political party cannot accept a donation from a person (which includes an individual or a body corporate) exceeding €100 without knowing the name and address of that person. If a person makes donations exceeding €600 in any one year they must disclose this information to the Public Offices Commission in a ‘donation statement’.

Irish law does not expressly prohibit the ability of corporations to contract with public bodies because of their support for political candidates or parties. However, the Electoral Acts and the Guidelines provide that corporate bodies making donations over €200 must disclose this in their annual return and, further, they must be entered on the Register of Corporate Donors maintained by the Standards in Public Office Commission. Therefore, public bodies contracting with contractors making political donations will be aware of those donations.

Compliance

Is a construction manager or other construction professional acting as a public entity’s representative or agent on a project (and its employees) subject to the same anti-corruption and compliance as government employees?

In Ireland, unlike in other jurisdictions, there is no distinction in legislation between corrupt acts or omissions of private persons and corrupt acts or omissions of persons employed by or acting on behalf of the public administration of the state. However, there is a presumption of corruption in certain instances that only applies to public officials. These include where:

  • a payment was made by a person, or agent of a person, who is seeking to obtain a contract from a government minister or a public body;
  • an undisclosed political donation above a certain threshold is made to certain specified persons and the donor had an interest in the donee carrying out or refraining from doing any act related to the office or position; or
  • a public official is suspected of committing an offence under the Corruption Offences Act and the person who gave the gift or advantage had an interest in the public official carrying out a function relating to his or her position as a public official. Therefore, the compliance obligations of construction professionals who are employed by or are acting on behalf of the state are no different than if they were employed by or acting for private entities.

 

See 'Bribery' for more detail on these offences.

Other international legal considerations

Are there any other important legal issues that may present obstacles to a foreign contractor attempting to do business in your jurisdiction?

Contractors should also be aware of the tax implications in the local market. Where a trade is being carried on in Ireland by a contractor through a branch or agency, a contractor (as a non-resident company) will fall within the scope of Irish corporation tax, which is 12.5 per cent. Contractors also need to consider the taxes they will pay on behalf of their employees.

Where contractors from another EU member state send employees to work in Ireland for a limited period, those employees will be entitled to certain minimum terms and conditions of employment under the European Union (Posting of Workers) Regulations 2016. To monitor compliance with these requirements, the Regulations will require the contractors to furnish certain information to the Workplace Relations Commission no later than the date on which the work begins.

Law stated date

Correct on

Give the date on which the above content was accurate.

The information in this chapter was verified between April and June 2019.