By Daniel Morris
Adviser, Human Rights and Development, Danish Institute for Human Rights
On the 6th October 2017 the Inter-American Network on Government Procurement (INGP) held a workshop on public procurement and human rights for its members in Santiago, Chile. This workshop was facilitated by Centro Vincular of the Catholic University of Valparaiso, the Danish Institute for Human Rights (DIHR), the International Corporate Accountability Roundtable (ICAR), and members of the International Learning Lab on Public Procurement and Human Rights.
The objectives of the workshop were to:
- Explore human rights law and public procurement;
- Look beyond the law to examine the economic and commercial benefits of integrating human rights into public procurement exercises;
- Share experiences on inserting social, human rights, and environmental protections into public procurement exercises; and
- Discuss how the INGP could support further integration of human rights in public procurement.
Presentations were made by Dante Pesce, Catholic University of Valparaíso, Member of the UNWG on Business and Human Rights; Nicole Vander Meulen, ICAR; Professor Geo Quinot, Stellenbosch University; Daniel Morris, DIHR; Natalie Evans, City of London; Pauline Gothberg, Swedish County Councils and Regions; and by members of the INGP.
The attendees at the workshop discussed various benefits of incorporating human rights into public procurement. For example, participants noted that incorporating human rights within public procurement represents an opportunity for States to lead by example, and also helps States and their representatives avoid the risk of human rights violations, including attached reputational risks. It further helps increase efficiency and avoid operational risks within procurement procedures, and provides an opportunity for policy coherence. Attendees also noted that incorporating human rights within public procurement can be an effective tool for realising the 2030 Sustainable Agenda.
Some of the challenges identified include the fact that international and national procurement laws and policies do not clearly and explicitly define the human rights responsibilities of public bodies in connection with their purchasing activities. At the same time, existing procurement laws and policies appear to have a ‘chilling effect’ on human rights and sustainability efforts by public buyers due to fear of litigation to contest procurement processes or decisions that include human rights-related conditions, for instance, in selection or award criteria. In the small minority of cases where public procurement rules do explicitly address human rights issues, they generally single out specific issues (e.g. child labour) or focus on promotion of some specific rights (e.g. gender) rather than addressing the full range of human rights risks relevant to the supply chain in question. Furthermore, public servants in procurement entities that have to put into practice the principles and standards to integrate human rights in their processes, are not familiarized with them and lack the technical capacity to take into account human rights risks into their decision-making processes. Additionally, it was noted that monitoring and enforcement of public requirements are recognized as the weakest part of the government procurement cycle and crucial to get right in terms of incorporating human rights within the procurement process.
Attendees highlighted strategies to integrate human rights into government procurement, including, among many others:
- Making a public commitment by the directors of contracting authorities in order to send a clear message to the market about the social values and standards that suppliers and contractors will have to consider when they enter in a commercial relationship with the state;
- Developing a code of conduct for suppliers and contractors may help to complement a public commitment by clearly announcing to business the state´s expectations on how to respect human rights;
- Establishing a multi-stakeholder forum to bring together different actors within society (e.g. business, government, civil society organizations, trade unions, national human rights institutions);
- Measuring the impact of integrating human rights requirements in to the cost of public procurement to compare it with the additional benefit and social value that is generated;
- Building capacities and strengthening management for those responsible for public procurement to make sure that there are good skills and resources available to really integrate human rights into the whole procurement cycle;
- Engaging in dialogue with suppliers and contractors at different stage of the public procurement cycle;
- Developing a monitoring and enforcement process to integrate the human rights into the whole procurement cycle to avoid and mitigate risks in value chains; and
- Building leverage by cooperating with other public buyers within the country or with other public buyers in the region.
A range of potential ‘next steps’ to integrate human rights in procurement process within INGP were identified by those in attendance:
- Identify the responsible entity within the state that leads the business and human rights agenda to articulate the value of public procurement and human rights in the national agenda and strengthen a common position on this topic;
- Create a common narrative that describes the reasons why government procurement should integrate human rights issues across the procurement cycle;
- Carry out a baseline study about the progress made by INGP members in integrating human rights issues into procurement cycle and build case studies to foster peer learning and share this information among INGP members;
- Build capacities of public procurers integrating practical case studies and e-learning tools that facilitate their learning process. Developing a toolkit based on existing information and tools (e.g. Risk checker from the Netherlands) can help and guide buyers in implementing these standards and principles;
- Develop a study to identify the economic and commercial benefits of integrating human rights into public procurement;
- A declaration could be adopted that reflects the commitment of the INGP on public procurement and human rights;
- Integrate the human rights theme within the annual meeting of the INGP to share good practices, to form working groups on the subject and generate a race to the top among the members of the network;
- Develop and share standardized methods and contract clauses across the region to facilitate the incorporation of human rights into procurement processes;
- Develop verification mechanisms (within the INGP or by a third-party) to follow up progress in the incorporation of human rights within procurement and evaluate the level of implementation of requirements by contractors.
It was highlighted that special focus should be given to SMEs and to states with small economies.