Public
procurement
Public purchases in practice are constituting a significant means
of influencing the behaviour of economic operators. Contracting authorities
and entities can be called upon to implement the various aspects of an equal
opportunity policy in awarding contracts. One can cite, as an example of
this situation the so-called "positive actions", that is the use of a public
contract as a means of achieving the objective sought, for example, establishing
a captive market for a sheltered workshop, which could not reasonably be
expected to stand up to competition from classic commercial companies with
a normal level of productivity.
The best value for money objective in EU public procurement policy does not exclude taking such equal opportunities considerations into account. However, such criteria must comply with Community law, particularly as regards transparency and non-discrimination and the public procurement rules. The Green Paper "Public Procurement in the European Union: Exploring the Way Forward" adopted by the Commission 1996 refers to the possibility of using public procurement in a way promoting employment of disabled people, while respecting Community law. markets into the single market putting in place a market economy with free competition.
There is a range of possibilities for public administration to take
the pursuit of social objectives into consideration in their purchasing:
- The rules of the public procurement directives allow the exclusion of candidates who breach national social legislation, including those relevant to the promotion of equality of opportunities.
- A second possibility is to lay down as a condition of execution of public contracts, compliance with obligations of a social character, aimed for example at promoting the employment of women or encouraging the protection of certain disadvantaged groups. Of course, only those conditions of execution are authorised which do not discriminate, directly or indirectly, against tenders from other Member States. Moreover, indicating these conditions in the tender notice or the specification must ensure sufficient transparency.
