Advancement of Women in public procurement - legal options for municipalities and cities in Europe written by Kerstin Ahlberg; in Documentation of the FemCities Conference 2010
TABLE OF CONTENTS
What is public procurement about?
Kerstin Ahlberg (Institute for Social Private Law, Department of Law, Stockholm University, Sweden)concludes her article Advancement of women in public procurement – legal options for municipalities and cities in Europe: „The advancement of women can be promoted in public procurement. However, the conditions must be elaborated with care and with consideration to all circumstances of the case in question, and at all stages, the criteria applied must be transparent, non-discriminatory and proportionate.“ But first:
What is public procurement about?
for public contracts. What does “fair” mean in this context?First, public procurement is about buying goods and services by state authorities and public local authorities, buying goods and services of the right quality for the right price. One question is: What is the right quality? Another question is: What is the right price? – This does not necessarily mean the lowest price. Second, public procurement is about fair chances for all suppliers who compete
When you answer these questions, there are two different approaches:
The first approach, which is favoured by many procurement specialists, is that when the procuring authority decides from whom it is going to buy goods or services, this authority should restrict itself to considering the price and the quality of the goods or service in ist strictest sense; that is, purely economic considerations should be taken into account.
The second approach is that when you decide what and from whom you are going to buy goods and services, you should consider other public interests as well, such as environment protection or good labour conditions for those who produce the goods or who work with these services that you are going to procure.
Obviously, these are both political approaches.
Arguments underpinning the first approach are that procurement is such a complicated procedure that only purely economic considerations linked very closely to the object of the contract are to be taken into consideration. It is sufficient that environmental protection and fair labour rights etc. are regulated in specific legislation.
However, this specific legislation, for example on equal rights and equal opportunities, is not always very effective on its own.
Thus, arguments for the second approach are that public procurement is an additional instrument for promoting the respect of this specific legislation. The chance to get perhaps a public contract is a stronger incentive for potential suppliers to live up to this specific legislation on, for example, equal opportunities. Also, it is possible to link more effective sanctions to a public contract than the sanctions linked to the special regulations on equal opportunities because you could link sanctions like a heavy fine for suppliers that break the contract. Additionally, if public purchasers do not reward suppliers that live up to the spirit of the law, then they give a competitive advantage to suppliers who do not. Would this then be fair?
How can municipalities and cities use their procurement to promote good labour conditions, including the advancement of women?
EU law
First, EU law needs to get addressed because specialists on public procurement often tend to say that there is no room to integrate social considerations into public procurement, as it is against EU law. In some cases, EU law seems to be used as a scapegoat in order to prevent changes.
More often perhaps, the reason why public procurement experts tend not to like inclusion of social considerations in procurement is because the law appears unclear. In order not to risk something that might be contrary to EU law or national law on procurement, the conclusion often is not to try at all. An extreme principle of precaution is applied because, of course, procurement is a complicated procedure, it takes long time and, if some of the tenderers are dissatisfied with the outcome, they may go to court and then you may have, in the worst case, to start from the beginning again. So rather than taking that risk, experts often say, ‘Let’s forget about the gender mainstreaming’, or whatever it could be that might be permissible.
It is true that procurement legislation is complicated, and it is true that EU law sets some limits. But it is equally true that there is a scope for integrating social considerations into public procurement, and I want to encourage you to ensure that this scope for integrating social considerations is secured because the law is not that unclear and the scope is not that small, and it is not that complicated!
Here is limited space to make you to fully-fledged procurement experts, but I will try to give you a short overview that may provide you with some arguments that you can use next time if some experts claim it is not possible:
Numerous public contracts are of great interest to the internal market. Therefore, there is quite a comprehensive body of EU legislation on public procurement. The objective of this legislation is to remove obstacles preventing the functioning of the internal market and to remove the risk that foreign suppliers of goods and services are discriminated against. The aim is not to tell member states on what they are to spend their money, the aim is just to secure that when member states decide on what to spend their money, their decision should be taken in such a way to ensure that it is not discriminating against foreign providers of goods or services.
Two directives are the central legislation on EU level (Directive 2004/17/EC of the European Parliament and of the Council of 31 March, 2004 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors. Directive 2004/18/EC of the European Parliament and of the Council of 31 March, 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts). They apply to contracts above certain thresholds. Contracts below the threshold values are not covered. Also, certain so-called non-prioritized services that are in principle covered by the directives are in practice exempted from most of the rules there. Many of these services, which are listed in an appendix, are services typically provided by local authorities, such as education, health service and the like. Thus, such services are exempted from most of the provisions of the directives even when the contract is above the threshold.
This does not mean that you can do whatever you want or like in these cases. You have to respect the general principles of EU law, that is non-discrimination and transparency, at least if the contracts are of interest for the internal market. This suggests that if you deem that a certain contract – even if it is not covered by the directive or even if it is only partly covered by the directive – could be of interest for suppliers in other member states, you have to ensure that the general principles of EU law are respected.
What do these EU directives say?
The directives regulate the procurement procedure, nothing else. They do not impose any obligations on member states as regards what they are to buy. By regulating the procedure, they aim at assuring that no irrelevant considerations affect the choice of a contractor. This means that suppliers from all member states should have a fair chance to compete and to obtain the contract. Therefore, the directives regulate what types of conditions may be applied during different stages of the procurement procedure.
Is there room for integrating social considerations into the procurement procedure?
Since these directives only regulate the procedure, there is in principle no restriction at all on what states decide to buy (unless, of course, you say that you are to buy goods of a certain brand that is produced in your own country. This is not possible). So, for example, when you are going to buy some work equipment that will be used in some of your services, you can perfectly well specify that it must be designed so that it can be used not only by people who are of the same size and the same strength as an average man, but that it can be used by everyone.
Options for including advancement of women when procurement is not or only partly covered by the EU directives
When you have decided what to buy, the scope for social considerations varies between different cases of procurement and during different stages of the procurement procedure. As regards procurements that are not covered by the directive (since the contract does not reach the threshold) or those that are only partly covered (such as education and health and social services), even the European Commission admits that the scope is very wide. A Communication from the European Commission (Interpretative communication of the Commission on the Community law applicable to public procurement and the possibilities for integrating social considerations into public procurement COM/2001/0566 final /) says that “public purchasers are free to pursue social objectives in respect of public procurement contracts not covered by the public procurement directives, within the limits laid down by the general rules and principles of the EC Treaty. It is for Member States to determine whether contracting authorities may, or must, pursue such objectives in their public procurement.”
Options for including advancement of women when procurement is covered by the EU directives.
As mentioned before, if the procurement is covered by the directives, the scope varies for the different stages of the procedure:
Qualification criteria:
The qualification criteria are criteria that decide which suppliers are able to participate in a particular tender at all.
They have to have a certain financial and technical capacity, for example, in order to be able to fulfil the contract in question with the required quality. Of course, this is mostly about the suppliers’ financial and professional qualifications, their previous experience of similar services etc., but there can be room for social considerations as well. For example, the procuring authority can require that, in order to qualify, the tenderers must hand in a written risk assessment for the work in question in order to show that it is competent to manage health and safety issues during the work. Otherwise, they have to show that they have a documented equality action plan, which is to demonstrate that they are able to fulfil the requirements of the equal treatment legislation.
Exclusion criteria:
Also, suppliers who have been found guilty of grave professional misconduct can of course be excluded from even competing for the contract. The grave professional misconduct includes for example breach of labour legislation.
Award criteria:
After the procuring authority has sorted out the qualified tenderers, separated those who are qualified and those who are not qualified, the next step is to value the tenders from all the qualified tenderers. This means to weigh the quality of the services or the goods they offer against the price that they want to have and find the balance to see what is the economically most advantageous tender. This must be done according to the award criteria that the procuring authority has announced before.
The main thing here is the quality of the goods or services that the authority is going to buy, and it is debated how wide the scope for including social considerations is. There is, however, a room for social considerations, too.
The main award criteria are criteria related to the object of the contract. There is room to apply additional award criteria that have to do with social considerations, for example, ‘How will the tenderer take equality aspects into account during the performance of the contract?’,
‘What measures will they take in order to facilitate a combination of work and family life during the performance of the contract?’. This could be one additional criteria after the other, which may be taken into consideration.
Contract performance conditions:
When the public purchaser has decided which of the tenderers the contract will be awarded to, then the performance of the contracts starts. At this stage, there is a comparably wide scope for including social considerations as one contractor has already been chosen. The possibility to discriminate against foreign service providers is hence not existent any more because the choice has already been made, hopefully without discrimination.
Contract performance conditions are conditions that all tenderers must be prepared to accept in case they are awarded the contract. Therefore, it has to be stated in the invitation to tenders already that in case they get the contract, they will have to apply these conditions during the performance of the contract.
The typical example is that the contractor will have to employ at least two long-term unemployed persons to perform the work comprised by the contract. Another example is that during the performance of the contract, the contractor must show what they do to facilitate conciliation of work and family life for those workers who work on the contract during the period.
Limitation: The contract performance conditions are only linked to the contract, not to the whole company
It is important, however, that the contract performance conditions are linked to precisely the performance of the contract. You cannot say, ‘If you are going to have this contract, you must see that in all your company’s activities you facilitate to combine work and family life.‘ It can only relate to the work that the contract is about.
Comparative study of six countries
A colleague and I made a study in which we compared how six EU member states had implemented the Directives and how they had used this scope for integrating social considerations into their legislations. One of the countries we studied was Germany (unfortunately not Austria).
The central clause in Germany’s federal legislation on public procurement says that “contracts are given to competent, efficient as well as law-abiding and reliable companies. For the contract performance additional requirements may be posed on the contractor, especially concerning social aspects” („Aufträge werden an fachkundige, leistungsfähige sowie gesetzestreue und zuverlässige Unternehmen vergeben und für die Auftragsausführung können zusätzliche Anforderungen an Auftragnehmer gestellt werden, die insbesondere soziale Aspekte betreffen.“ 97 § Gesetz gegen Wettbewerbsbeschränkungen). In the preparatory work, the German Federal Government specifies what it means by “law-abiding” and “reliable”. These terms are constituent elements of the German legal order which everyone must comply with in order to be able to compete for contracts, for example, generally binding collective agreements, the principle of equal pay and the ILO core Conventions which include the Convention on Non-Discrimination (C111 Discrimination (Employment and Occupation) Convention, 1958).
Then, each of the “Länder” in Germany have their own procurement legislation, and to the extent that they relate to social considerations, they provide even more room for social considerations. The federal law also mentions “additional requirements for contract execution”, these are “contract performance conditions”.
The Federal Government specifically mentions requirements that serve the interest of promoting equal rights and equal pay for women and men who work with the performance of the contract. So, Germany has its Federal Government’s own word that it is perfectly permissible and even recommendable to include gender equality in procurement procedures.
Conclusion
Thus, to sum up, the advancement of women can be promoted in public procurement. However, the conditions must be elaborated with care and with consideration to all circumstances of the case in question, and at all stages, the criteria applied must be transparent, non-discriminatory and proportionate.
Literature/References
Ahlberg, Kerstin & Bruun, Niklas: Upphandling och arbete i EU, Swedish Institute for European Policy Studies 2010:3, Stockholm 2010
Short biographie and contact Kerstin Ahlberg
Dr. Kerstin Ahlberg, Institute for Social Private Law at Stockholm University. Her research mainly focuses on European Union Labour Law and Industrial Relations. Recently, she published a study on Public Procurement and Labour in the European Union. Dr. Ahlberg will present the promotion of women by means of public procurement. She will give an overview of the legal framework set by the European Union and answer the question whether the inclusion of gender equality considerations in the procurement process is compatible with European Union and national laws.
You can contact Kerstin Ahlberg: Kerstin.Ahlberg[at]juridicum.su.se
