On 28 January 2011 the European Commission issued a publication entitled “Buying Social: A Guide to Taking Account of Social Considerations in Public Procurement”.
This is a broad ranging paper analysing many elements of social procurement of which legal considerations are only one part. In general the Commission aims to raise public authorities awareness of the issues involved in socially responsible public procurement (SRPP).
In amongst the many social and political issues the main themes emerging on this them when securing legal compliance are:
- inserting social issues within the subject matter of a contract (technical specifications) or award criteria;
- excluding participants found guilty of past wrongdoing in social issues; and
- including social considerations in the contract conditions to be entered into with successful; bidders.
The guide notes that social issues within technical specifications must be relevant to the subject matter of the contract and must be transparent and nondiscriminatory. They should relate to the outcomes required but cannot, for example, limit access to suppliers bearing particular ethical trade marks.
As regards other technical assessments the guide notes that selection and/or award criteria may take account of social considerations only if the achievement of the contract specifically requires this – in other words there must be a direct link to the nature of the contract.
On the other hand the guide notes that it is far easier to incorporate social considerations into performance contracts required to be agreed by successful bidders.
This way, while it is harder to select bidders in accordance with their social credentials, it is much easier to require them to fulfil certain social inputs (eg. employment and labour conditions, health and safety, minimum wages etc.) once awarded the contracts concerned.
To the above extent the guide does not create new law at all but is a helpful articulation of the law in this area.