Social Considerations in EC Public Procurement

1. Social Considerations in EC Public Procurement Loredana Puiu Internal Market & Services DG Directorate C: Public Procurement Policy

2. EU Legal Framework • EC Treaty • Legislative Package (Directives 2004/17/EC and 2004/18/EC) • ECJ Case Law

3. EU Legal Framework • Public procurement – 16.3% of EU GDP • Purchasing best value for tax-payers money • Value may include also social and environmental considerations

4. Social Considerations • May be taken into account at every stage of a public procurement procedure (in technical specifications, selection criteria, award criteria, contract execution clauses) • Must always: - be linked to the subject matter of the contract - comply with the Treaties’ fundamental principles (transparency, non-discrimination …)

5. Planning Procurement Actions • What to buy – defining the subject matter of the contract • Possibility to reserve the right to participate in public contract award procedures to sheltered workshops or provide for such contracts to be performed in the context of sheltered employment programmes(art.19 – Directive 2004/18) • Conditions: - 50% rule (applicable to both sheltered workshops and sheltered employment programmes) - competition between sheltered workshops/employment programmes

6. Technical Specifications • Whenever possible, to take account of accessibility criteria for disabled persons/design for all (Art. 23 – Directive 2004/18) • Exemples: - access to built environnement - access to information and communication technologies

7. Selection Criteria/Exclusion • Exemples of social considerations in the selection criteria • Relevant Exclusion Criteria: - offence concerning the professional conductconvicted by judgment (Art. 45 (2) (c) – directive 2004/18) - grave professional misconduct (any means) (Art. 45 (2) (d) – directive 2004/18) - non-payment of social security contributions (Art. 45 (2) (e) – directive 2004/18)

8. Award Criteria (I) • Lowest price/most economically advantageous tender • Social considerations may be included in the award criteria, subject to certain conditions defined by the public procurement directives and by ECJ relevant case-law (recitals 1 and 46 and art. 53.1 of the directive 2004/18)

9. Award Criteria (II) • Conditions: • Be linked to the subject matter of the contract • Not confer unrestricted freedom of choice on the contracting authority • Be expressely mentionned in the contract notice and in the tender documents • Comply with fundamental principles of Eu law (transparency, non-discrimination, etc)

10. Award Criteria (III) • The previous conditions apply more generally to all types of award criteria, and not only to social considerations • Possibility to exclude abnormally low tenders (art. 55 – directive 2004/18), in several cases, including in case of non-compliance with the provisions relating to employment protection and working conditions

11. Performance of the Contract • Social considerations in contract performance clauses must: - be indicated in the tender documents; - be related to the performance of the contract - must comply with fundamental principles of Eu law

12. Conclusions • EU law offers a broad range of possibilities to include social considerations in public procurement • These possibilities are not taken up to a great extent, because of lack of familiarity with what is and is not possible under the Directives • The Commission’s services have consequently taken the decision to prepare a practical Guide to taking account of social considerations in public procurement