Construction of the new national children’s hospital in Dublin. The head of the Department of Health has said that retaining the same law firm which drafted the national children’s hospital contract to represent it legally could lead to accusations of ‘bias’.
The head of the Department of Health has said that retaining the same law firm which drafted the national children’s hospital contract to represent it legally could lead to accusations of “bias”.
Robert Watt, the secretary general of the department, was addressing the fact that McCann Fitzgerald, one of the country’s premier law firms, drafted the contract for the controversial €1.7bn hospital bid in August 2017 and has since been appointed the main legal advisor to the National Paediatric Health Development Board (NPHDB), the body with responsibility for delivering the new hospital.
Public Accounts Committee (PAC) vice chair Catherine Murphy had previously suggested that case of affairs could give rise to a “potential conflict of interest”.
Speaking to the in February, Ms Murphy allowed that it could “make sense for them [McCanns] to advise the board as they would be au fait with the contract”, but countering that she said “the contract signed doesn’t appear to be watertight because how could it be if so many claims are being made”.
To date, well over 1,000 contractual claims have been taken against the NPHDB by the main contractor BAM. Some 641 claims were made against the board in 2021 alone, despite a moratorium being placed on such actions from June of that year.
The cost of defending legal disputes involving the NPHDB last year was a little under €1.1m.
In a letter to PAC, Mr Watt has now said that the appointment of the same firm, albeit through two separate procurement processes, “could give rise to the perception of bias”.
‘Mitigating risk’
However, he added that since all EU and Irish procurement laws were followed in appointing McCanns, “all possible steps to mitigate the risk of bias were employed”.
He said that any attempt to preclude the law firm from applying for the second tender would have been “open to challenge”.
He added that the NPHDB is a “statutory independent body” following its own policy on the procurement of legal services.
Mr Watt said that the legal services provided to the NPHDB are of a “specialist” nature, which only a small number of firms would be able to perform.
He said that just three firms had applied for the tender to draft the hospital contract, with the same three firms again applying for the subsequent competition to provide support services regarding that same contract.
It emerged at an NPHDB meeting in January 2021 that McCanns were providing discounts to the board due to the volume of work they were doing on its behalf.
At the same meeting, one member of the board queried whether there had been any procurement issues surrounding McCanns’ fees given that the amounts being charged appeared to be in excess of the initial award — the same member was reassured that the larger figure had resulted from matters other than the core legal services being provided by the firm.
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