1. Public procurement directives
David Hansom, Partner, London
International Learning Lab on Public Procurement and Human Rights
Geneva, 17 November 2016

2. 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

3. 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

4. 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?

5. 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

6. David Hansom
Partner
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