By Albert Sánchez-Graells
Professor of Economic Law, University of Bristol Law School, UK
In this post, Albert Sánchez-Graells maps how the 2014 EU public procurement rules create regulatory space for human rights considerations in every phase of the procurement cycle. Despite this possibility, there are questions as to the effectiveness of any of the foreseen mechanisms due to policy fuzziness and significant resource constraints. The desirability of human rights-oriented procurement can also be queried due to the implicit trade-offs it creates against the general effectiveness of the procurement function.
Despite the fact that the term ‘human rights’ does not appear even once in the European Union’s 2014 Public Procurement Package, there is an emerging consensus that this new set of rules provides increased scope for contracting authorities to include human rights considerations in the design and execution of public tenders. However, with one limited exception concerning the mandatory exclusion of tenderers convicted by final judgment of child labour and other forms of trafficking in human beings, the 2014 rules do not mandate the use of procurement for the enforcement or promotion of human rights norms. All relevant decisions are left to either the implementing legislation of the Member States or, where the latter does not prescribe a specific approach, to general policies or case-by-case decisions by contracting authorities.
This means that, to a large extent, the pursuit of human rights goals is left to the discretion of contracting authorities and, consequently, it is subjected to the relevant checks and balances—and, in particular, the constraints derived from the general principles of EU procurement law. Equally, constraints derived from limited human and technical resources, as well as the difficult trade-off between competing procurement goals will determine the extent to which contracting authorities are willing to or capable of taking into consideration human rights issues at different phases of the procurement cycle, while still achieving the desired general effectiveness and efficiency of the procurement function.