Public procurement directives
David Hansom, Partner, London
International Learning Lab on Public Procurement and Human Rights
Geneva, 17 November 2016
www.vwv.co.uk | Offices in London, Watford, Bristol & Birmingham
Lawyers & Parliamentary Agents
Recap on EU Directives
• EU law aims for promotion of single market and non-discrimination
• Procurement Directives aim to ensure level playing field for €425
billion EU wide public sector spend
• Latest Directives 2007/66/EC, 2009/81/EC; 2014/23/EC;
2014/24/EC and 2014/25/EC cover:
− Public services, supplies and works contracts
− Public services and works concession contracts
− Regulated procurement activity by utilities
− Defence procurement
− Remedies
• All link to EU guidance and the UNGPs
www.vwv.co.uk | Offices in London, Watford, Bristol & Birmingham
Lawyers & Parliamentary Agents
Recap on EU Directives
• Directives historically concerned with lowest cost
• Newer directives and case law expressly permit wider criteria
− Nothing express on human rights:
− a “conviction by final judgment” of child labour and
other forms of trafficking under Art 2 of Directive
2011/36/EU
− member state discretion (e.g limited Modern Slavery
Act/ Asylum Act offences as grounds of exclusion in UK)
− Discretionary – “guilty of grave professional misconduct, which
renders its integrity questionable” – broad and hard to enforce
www.vwv.co.uk | Offices in London, Watford, Bristol & Birmingham
Lawyers & Parliamentary Agents
Common practical issues
• Procurement practitioners raise the same issues:
− Can we exclude a supplier on human rights grounds?
− Who is the bidder?
− How do we deal with supply chain visibility and human rights?
− What offences can lead to exclusion?
− Is a hunch enough – or do we need a judgment?
− What about the “self cleaning” regime?
− How do time limits on exclusion link into human rights?
− Can we put contractual protections in place?
− What is the risk of getting this wrong?
www.vwv.co.uk | Offices in London, Watford, Bristol & Birmingham
Lawyers & Parliamentary Agents
Challenges and opportunities
•
•
•
•
Tension between economic policy and human rights
Grounds of exclusion are very limited - who is ever excluded?
Need to link evaluation criteria to subject matter of contract
Need a conviction to exclude (subsidiaries and non state actors).
Risk of legal challenge, especially if market exclusion
• Impact of Brexit?
BUT
• Directives do give more flexibility
• Can look at relevant supply chain issues at selection & award
• Build into contract terms?
• Lower value contracts less regulated
• Legal challenge under Directives generally time limited
www.vwv.co.uk | Offices in London, Watford, Bristol & Birmingham
Lawyers & Parliamentary Agents
David Hansom
Partner
[email protected]
(+44) (0) 207 665 0808
www.vwv.co.uk | Offices in London, Watford, Bristol & Birmingham
Lawyers & Parliamentary Agents