Social aspects of public procurement
When analysing their needs and requirements, contracting authorities must consider the possibility of taking into account social aspects of the procurement. The European Commission has just published the second edition of a guide on how to integrate social considerations into public procurement.
Pursuant to Art. 83 of the Polish Public Procurement Law, before commencing a procedure for the award of a classic contract with a value above the EU thresholds, the contracting authority must analyse the needs and requirements, taking into account the type and value of the contract. The conduct of this analysis is formalised, i.e. this provision specifies what elements it should include and what conclusions it should lead to. Social aspects are one of the mandatory aspects that must be taken into account.
As indicated in Art. 96 of the law, a contracting authority may define social aspects in the form of requirements associated with contract performance, which it indicates in the contract notice or contract documents. These are social clauses, which are then incorporated into the text of the public contract. This regulation applies to the contract execution phase. On the other hand, in accordance with Art. 242, social aspects may also constitute a quality criterion for bid evaluation.
On 26 May 2021, the European Commission released “Buying Social: A guide to taking account of social considerations in public procurement (2nd edition).” It contains a number of practical tips on elements to take into account when conducting procurement. However, above all, the publication is intended to make public buyers aware that their actions have a huge impact on society. Indeed, this influence extends to:
- Persons involved in the delivery of the contract, execution, and provision of materials, products and equipment necessary for performance of the contract
- A number of persons on the public side, responsible for preparation and conduct of the procedure and then for supervising implementation of the contract
- The lives of citizens, i.e. the users of social services, as completed infrastructure projects and services provided to the population impact the quality of life of the society.
Realising the importance of public purchasing and the social impact it can lead to can significantly modify the purchasing process. As the Commission points out, by making responsible purchases, contracting authorities can stimulate the local market by:
- Creating employment opportunities
- Increasing employees’ qualifications
- Affecting pay levels of contracting staff
- Fostering social inclusion of marginalised people.
Another important point is that in some market sectors, public procurement is the only way to obtain purchases. As a result, public contracting authorities have a decisive influence on how the market for road construction companies looks, how public transport is shaped, and the quality of services in the health sector. As the Commission points out, public buyers are the largest investors in Europe, spending as much as 14% of EU GDP.
Socially responsible public procurement is particularly important during the pandemic, the economic impact of which we will face for many years to come. As the Commission points out, “Socially responsible public procurement helps public authorities deliver quality services and products to their communities, to achieve additional social and ethical benefits even when budgets are limited, and can therefore contribute to countering the negative impact of the COVID-19 crisis.”
The new publication from the European Commission is a must-read for all contracting authorities. It is written accessibly and practically, and examples of good practice listed there can be directly applied to some procurements. The guide is a great source of knowledge on how to take into account social aspects when analysing needs and requirements, so that the procedure carried out as a result fully implements the principle of effectiveness, whether through qualitative criteria for evaluating offers related to social aspects, or by including social aspects in the form of contract performance phase requirements.
Anna Prigan, attorney-at-law, Infrastructure, Transport, Public Procurement & PPP Practice, Wardyński & Partners
