CEEP opinion on "the Guide on Social Considerations in Public Procurement"

Date

04 Jun 2009

Sections

Social Europe & Jobs

1. General Comment

Buttressing public procurement in sound socially-responsible principles seems essential, if only to disseminate consciousness on the importance of such principles within the business community. Public Authorities have a duty to provide raise awareness on this issue and follow a coherent approach in their procurement policy.

The possibility to take fully into account such principle to promote social goals has been laid down in recitals 28, 33 and 34 of Directive 2004/18/EC and in the corresponding recitals of Directive 2004/17/EC. Yet these guiding principles failed to be developed in the core text of
both Directives, thus introducing some unwarranted doubts on their legal status. It should be reminded that recitals are an integral part of any legal text and this point should be made more clear in the Guide.

The interpretative Communication while providing useful information seems too limited in its scope. Therefore, CEEP warmly welcomes the initiative of publishing a Guide, which should pave the way for future concrete proposals to redress the current situation as regards procurement Law.

2. Subcontracting

The Guide rightly points to subcontracting as a way to enlarge procurement access to SME.
Yet, one should not forget that subcontracting may be widely used to circumvent social standards and rules in order to offer more attractive prices. A clear warning should be given by the Guide on this problem inviting authorities to crack down on such practices. The
Rüffert case shows the shortcomings of any remedy action taken after the public contract has been signed without due care being taken to subcontracting. Directive 2004/18/EC fails to fill the gap as it approaches subcontracting in a very limited way (only for information
purposes).

3. The need for more detailed information

The Guide provides some useful tips on best practices undertaken by awarding authorities, as well as examples of things that can be done and those that should be considered as not compatible with Community Law. Some further details on best practices would be welcome,
as well as a more elaborate description of positive actions. But the key issue is to have a clear picture of the boundaries of what can be regarded as compatible and for to that end the best way to dispel any doubt would be to provide more examples of unwarranted conducts, specifying in full the reasons for considering them as non-compatible. The Guide should engage in such exercise in order to avoid providing misguided impressions that could eventually backlash and turn into infringement procedures. There is for sure a grey zone that may need ad-hoc advice from Commission officials on a case by case basis. But there is ample room to describe with further detail what can be done and what should awarding
authorities refrain from doing.

4. Presentation issues

The Guide would gain from a more targeted approach. One has the feeling that similar things are repeated along its pages. An index is clearly needed to facilitate its use. Too much literature is provided in the Introduction and Title II, as the real issues are tackled in Title III.
This Title III (onwards ?) should include most of the best practices and examples in a more systematic way, as what matters is to know how to deal with socially-responsible
procurement in every stage of the procedure: publicising tenders, fixing awarding criteria, making the selection of candidates in restricted procedures, awarding and monitoring contracts.