By Alys Samson Estapé
On 16 November 2017 Novact, Servei Civil Internacional de Catalunya and Nexes launched the “Guide for the protection and promotion of Human Rights in Public procurement”. The Guide aims to be a tool to support local councils and public administrations in Catalonia to avoid contracting with suppliers that commit or are linked to human rights abuses.
The new Guide focuses on the whole process of public procurement and addresses in turn: eligibility criteria; binding supplier responsibility statements (to be signed by the highest responsible manager of the supplier); evaluation criteria; contract execution and management; and monitoring and follow-up of public contracts.
The Guide was developed during the passage of a new Public Procurement Law in Spain in 2017. The organisations responsible for the Guide and others working for human rights advocated for amendments to this procurement law. Our principal aim was that it should become illegal for state bodies to enter into supply contracts with companies that do not respect human rights. As we did not succeed in integrating this norm into the Spanish legislation, the Guide is more necessary than ever. The new Spanish procurement law does establish a wider range of possibilities and includes more social aspects compared to its predecessor, but what social organisations sought is still missing: the ability to exclude entirely those companies responsible for human rights abuses from public procurement procedures.
Due to these shortcomings in the legislation, with the support of legal experts on public procurement in Spain, Tornos AbogadosTornos Abogados, as well as international collaborators and practitioners with experience of integrating human rights into public buying, we developed this new guidance.
Why is it necessary?
Many local councils have for a long time in Catalunya and the rest of Spain shown their commitment with human rights not just inside their own borders but abroad. Unfortunately, this commitment has often remained on a words-not-action level. The lack of mechanisms and binding measures to require suppliers to respect human rights has left public administrations that were willing to innovate and progress in this area with little to do.
At the same time, most supplier companies have yet to support progress on enhancing social dividends from public contracting. To illustrate, earlier this year, Barcelona Council stated that for energy companies to qualify for the public contract, valued at EUR 65 million, it would be necessary for companies to subscribe to the agreement derived from Law 24/2015 and respect the precautionary principle before cutting off supply to consumers, in addition to meeting other conditions, such as facilitating access to the “bond social “and other social tariffs, and offering training courses on energy rights and energy efficiency. Gas Natural and Endesa, the two biggest Spanish electric companies, however went to court to present demands against this process at the Public Sector Contracts Tribunal.
To tilt the terms of public buying more towards human rights, strong political will is needed. In 2015, the three organisations in charge of this Guide (Novact, SCI and Nexes) organised a trip to Palestine formed by Catalan members of Parliament of different political parties. During this trip, the involvement of some businesses that also act as suppliers to government in breaches of international law could be observed, as a result of which, the need for local councils and public administrations to have a guide on procurement and human rights was affirmed.
State duty to protect human rights
20% of Spanish GDP is spent on public procurement. Consequently, public procurement is a potentially powerful tool that can contribute to promoting respect for human rights in the business sector.
The Spanish state, as many others, has signed various international treaties pledging to respect human rights. But a lack of specific mechanisms and concrete measures usually entails that central government and other public bodies do not monitor whether, through their purchasing activity, they are contributing to supply chain human rights abuses. On this basis, it can be asked, what sense does it make that public institutions spend money in international development cooperation and humanitarian assistance projects if they are at the same time indirectly supporting conduct harmful of human rights by their suppliers? This new Guide hence aims at securing greater policy coherence at an institutional level. For decades, many institutions in Spain have donated 0,7% of their GDP to the Global South, to compensate for huge global wealth and resource inequalities. Yet 0,7% doesn’t make any difference if the remaining 99,3% of GDP is spent on buying goods and services from supplier that violate workers’, communities and consumers’ human rights. Deciding which companies receive public money via purchase contracts, and establishing ‘red lines’ based on corporate involvement in human rights abuses, is in fact a mechanism for fulfilling responsibilities arising under international treaties that have been signed and ratified. States and all state bodies must held accountable to their commitments and for upholding international standards.
Human rights organisations have been working for decades in documenting companies’ involvement in human rights abuses across the world. Legal accountability mechanisms through the courts unfortunately always follow slowly behind. This Guide explains how public administrations can now act to fulfil their “duty to protect” human rights under the UN Guiding Principles on Business and Human Rights, by monitoring and responding to supplier failures to meet the “corporate responsibility to respect” human rights. Public buyers have a duty to control who they contract with and thereby to avoid their own complicity in human rights abuses. We hope this Guide will be a useful tool for committed public institutions to meet these duties in practice.
The Guide is currently only available in Catalan, but will be translated and published in Spanish and English in February 2018.