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Social linkages in Public Procurement

Hoffmann, Dirk (2009)
Department of Law
Abstract
Public procurement - which can shortly be explained with the government's activity of purchasing goods and services - presents one of the largest economic markets in the world, accounting, on average, for 15 per cent of the gross national product (GDP) worldwide. One of the most controversially debated issues regarding public procurement is that of procurement linkages. The questions evolve around the problem, to what extend - if at all - governments are legally allowed to ''link'' certain policies as conditions to government contracts, in order to reach compliance by the private sector. These policies can reach from the promotion of environmentally sustainable practices (also known as ''green procurement''), the promotion of acceptable... (More)
Public procurement - which can shortly be explained with the government's activity of purchasing goods and services - presents one of the largest economic markets in the world, accounting, on average, for 15 per cent of the gross national product (GDP) worldwide. One of the most controversially debated issues regarding public procurement is that of procurement linkages. The questions evolve around the problem, to what extend - if at all - governments are legally allowed to ''link'' certain policies as conditions to government contracts, in order to reach compliance by the private sector. These policies can reach from the promotion of environmentally sustainable practices (also known as ''green procurement''), the promotion of acceptable working conditions, minimum salaries, human rights and abolition of child labour along the supply chain (so-called ''ethical procurement''), and the promotion of employment, equal opportunities and accessibility, safeguarding working conditions and supporting the social economy (so-called ''social procurement''). This study exploits the controversy around procurement linkages by example of the very recent topic of CSR linkages in procurement, also showing some of the great advantages to be gained from it. It then takes a closer look at the international legal instruments (more specifically the EC Procurement Directives and the WTO Government Procurement Agreement) governing public procurement, to see if they help bring clarity to the controversy, or if they are actually party responsible it. The main finding of the study is that there is a lot of room under the international legal instruments governing procurement to include social and ethical considerations in procurement decisions. However, the guidance for government entities in interpreting those instruments is insufficient, causing a great amount of legal uncertainty. State entities fear to overstep their competences in applying social policies to their procurement decisions. This seems necessary in order to bring legal clarity into the topic. So far, Guidelines and Commentaries have not provided more legal certainty in the application of the law. It is therefore up to the ECJ to interpret the Directives (at the European level) or to the Appellate Body of the WTO to further interpret the Government Procurement Agreement. This, however, requires some risk-taking by governments, who so far have been reluctant to push the boundaries on the issue of procurement linkages. (Less)
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author
Hoffmann, Dirk
supervisor
organization
year
type
H2 - Master's Degree (Two Years)
subject
keywords
International Human Rights Law and International Labour Rights
language
English
id
1555391
date added to LUP
2010-03-08 15:23:37
date last changed
2010-03-08 15:23:37
@misc{1555391,
  abstract     = {Public procurement - which can shortly be explained with the government's activity of purchasing goods and services - presents one of the largest economic markets in the world, accounting, on average, for 15 per cent of the gross national product (GDP) worldwide. One of the most controversially debated issues regarding public procurement is that of procurement linkages. The questions evolve around the problem, to what extend - if at all - governments are legally allowed to ''link'' certain policies as conditions to government contracts, in order to reach compliance by the private sector. These policies can reach from the promotion of environmentally sustainable practices (also known as ''green procurement''), the promotion of acceptable working conditions, minimum salaries, human rights and abolition of child labour along the supply chain (so-called ''ethical procurement''), and the promotion of employment, equal opportunities and accessibility, safeguarding working conditions and supporting the social economy (so-called ''social procurement''). This study exploits the controversy around procurement linkages by example of the very recent topic of CSR linkages in procurement, also showing some of the great advantages to be gained from it. It then takes a closer look at the international legal instruments (more specifically the EC Procurement Directives and the WTO Government Procurement Agreement) governing public procurement, to see if they help bring clarity to the controversy, or if they are actually party responsible it. The main finding of the study is that there is a lot of room under the international legal instruments governing procurement to include social and ethical considerations in procurement decisions. However, the guidance for government entities in interpreting those instruments is insufficient, causing a great amount of legal uncertainty. State entities fear to overstep their competences in applying social policies to their procurement decisions. This seems necessary in order to bring legal clarity into the topic. So far, Guidelines and Commentaries have not provided more legal certainty in the application of the law. It is therefore up to the ECJ to interpret the Directives (at the European level) or to the Appellate Body of the WTO to further interpret the Government Procurement Agreement. This, however, requires some risk-taking by governments, who so far have been reluctant to push the boundaries on the issue of procurement linkages.},
  author       = {Hoffmann, Dirk},
  keyword      = {International Human Rights Law and International Labour Rights},
  language     = {eng},
  note         = {Student Paper},
  title        = {Social linkages in Public Procurement},
  year         = {2009},
}