[CEUD-ICT] EU procurement: Reserved contracts

[mmaguire at connect.ie]

Hi; Was passed this by a colleague, which may be of interest.

Gives a list of some national responses and strategies - up to and 
beyond 2009.

MM

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EU procurement: Reserved contracts

The European Community (European Union) Procurement Directive 
2004/18/EC offers room for social considerations, by giving the member 
states an option to reserve public contracts for handicapped persons.

We look at the relevant Directive provision and its explanation. Sweden 
and Finland present different legislative solutions at national level.

We then broaden our outlook by a few examples of activities within 
broader or related contexts: responsible purchasing, sustainable 
procurement and socially responsible procurement.



***

Article 19

As an exception to ordinary award procedures public contracts can be 
reserved for sheltered workshops and sheltered employment programmes 
for handicapped persons. Article 19 of the Procurement Directive 
2004/18/EC leaves this option to the member states.

This exemption has to fulfil objective criteria: Most of the employees 
are handicapped persons, who, by reason of the nature or the 
seriousness of their disabilities, cannot carry on occupations under 
normal conditions.

Even if only sheltered workshops or employment programmes are eligible, 
the rest of the Procurement Directive 2004/18/EC applies to the 
contract award procedure. It has to be non-discriminatory and 
transparent, including a reference to Article 19 in the contract 
notice:



S e c t i o n 4
Special arrangement

Article 19
Reserved contracts

Member States may reserve the right to participate in public contract 
award procedures to sheltered workshops or provide for such contracts 
to be performed in the context of sheltered employment programmes where 
most of the employees concerned are handicapped persons who, by reason 
of the nature or the seriousness of their disabilities, cannot carry on 
occupations under normal conditions.

The contract notice shall make reference to this provision.


***

Reasons for special arrangement

Recital 28 of the Procurement Directive presents the reasons for 
creating the special arrangement, whereby contract notices can be 
directed solely at sheltered workshops or employment programmes:

(28) Employment and occupation are key elements in guaranteeing equal 
opportunities for all and contribute to integration in society. In this 
context, sheltered workshops and sheltered employment programmes 
contribute efficiently towards the integration or reintegration of 
people with disabilities in the labour market. However, such workshops 
might not be able to obtain contracts under normal conditions of 
competition. Consequently, it is appropriate to provide that Member 
States may reserve the right to participate in award procedures for 
public contracts to such workshops or reserve performance of contracts 
to the context of sheltered employment programmes.


***

National level examples


Sweden

National circumstances vary. In Sweden a number of organisations 
consulted expressed misgivings about the effects of a provision on 
reserved contracts, given existing arrangements for employment of 
disabled persons.

This was discussed in the Government Bill (Regeringens proposition 
2006/07:128 Ny lagstiftning om offentlig upphandling och upphandling 
inom områdena vatten, energi, transporter och posttjänster, under 9.3 
Reserverade kontrakt on page 185 to 187).
The Swedish Government decided not to include a provision on reserved 
contracts in its proposal, with the following conclusions:


Utredningen föreslår att bestämmelserna om reserverade kontrakt 
genomförs i den svenska lagstiftningen. Flera remissinstanser har 
emellertid invänt att en bestämmelse om reserverade kontrakt kräver 
ytterligare preciseringar bl.a. såvitt avser hur begreppen "skyddade 
verkstäder" och "program för skyddad anställning" skall tolkas. Det har 
även framförts att förslaget skulle kunna få ogynnsamma 
marknadsstörande effekter.

Regeringen anser att utredningens förslag för närvarande inte bör 
genomföras.


***

Finland

Finland has made use of the option to reserve the award of certain 
public contracts to sheltered workshops or employment programmes. 
Section 14 of the Act on Public Contracts (348/2007) is practically 
identical to Article 19 of the Procurement Directive:


Section 14 - Reserving public contracts for sheltered workshops

Contracting authorities may reserve the right to participate in public 
contract award procedures in favour of sheltered workshops or provide 
for such contracts to be performed in the context of sheltered 
employment programmes where most of the employees concerned are people 
with disabilities who, by reason of the nature or the seriousness of 
their disabilities, cannot carry on occupations under normal 
conditions. The public contract notice must indicate that the contract 
is reserved for sheltered workshops or programmes.


***

Responsible purchasing

A broader outlook is provided under the term responsible purchasing, 
which includes issues such as professional standards for purchasing 
staff, environmental considerations, ethical and social issues as well 
as the role of small and medium-sized enterprises (SMEs).


The Scottish Parliament has approved a Responsible purchasing strategy, 
which may be of interest elsewhere in Europe:



http://www.scottish.parliament.uk/corporate/procurement/docs/Strategy-
FINAL.pdf


***

Sustainable procurement

Even if the Scottish Parliament preferred the term responsible 
purchasing (rather than sustainable procurement) Local Governments for 
Sustainability ICLEI campaign for sustainable procurement. You can find 
information about their Procura+ campaign and other activities on:


http://www.iclei-europe.org/index.php?id=procurement

Socially responsible procurement (SRP)

The ICLEI Respiro project is aimed at socially responsible procurement. 
You can access information here:

http://www.respiro-project.eu/index.php?id=conference

Martin Maguire

Connect.ie, 44 Westland Row, Dublin 2
Tel:+353-1-6763456 Fax:+353-1-6763555 
Mob.+353-86-UCALLME (+353-86- 822-5563)
URL: http://www.connect.ie
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