27 de marzo de 2019
Is a shift in the animating feature of public procurement law emerging at the global level?
Por el Prof. Geo Quinot
Professor, Department of Public Law, Stellenbosch University (South Africa), Director: African Procurement Law Unit
During the latter part of the previous century, public procurement law has not only emerged as a major area of interest to lawyers and regulators at a national level, but there has been a steady move towards a common set of procurement-law rules worldwide. This is evident in a number of regional procurement-law instruments, which have increasingly determined the content of national procurement law. The prime example is probably the EU directives on public procurement of which Sue Arrowsmith said in 2006:
“The original EC procurement regime had very much of a framework character: it laid down a limited body of rules on key issues, and left considerable discretion to Member States to supplement these with their own national procurement laws. It is submitted, however, that the regime is currently undergoing a revolution: it is moving markedly away from its original framework character in the direction of a system of common rules.”1
In Africa, the Common Market for Eastern and Southern Africa (COMESA) has promoted reform of procurement systems, which has had a significant impact on the national regulatory regimes governing public procurement in COMESA’s 21 member states. This project has included a model regulatory framework as well as a standard set of rules for procurement above stated thresholds in the region.
Beyond regional instruments, two truly international instruments have dominated global perspectives on public procurement law. These are the United Nations Commission on International Trade Law (UNCITRAL) Model Law on Procurement and the World Trade Organization’s Agreement on Government Procurement (WTO GPA). Especially the UNCITRAL Model Law has had particular impact on creating new public procurement regulatory systems in emerging economies such as in Africa with consequent harmonization effect.
The common denominator across all these supra-national legal instruments aimed at regulating public procurement is the opening up of international trade. This is most evident in the last-mentioned international instruments, where the very bodies that created them, viz. UNCITRAL and the WTO, are primarily aimed at harmonizing regulatory regimes in service of increased international trade. The same aims emerge from the various regional instruments. Stephen Karangizi has thus noted the first objective of the COMESA procurement-law reform project as “contributing to the liberalisation of trade in goods and services in the COMESA region”.2
Opening up international trade in public supply markets and maximum levels of open competition for public contracts in the service of that aim have accordingly become hegemonic in public procurement law debates and development internationally. However, during the last few years a new counter narrative has started to emerge with increasing regularity and command in these public procurement law debates. The notion of sustainable development as a primary goal of public procurement systems, including the regulatory regimes governing those systems, has rapidly become a dominant feature at the international level.
This development is probably best illustrated by the explicit reference to public procurement within the framework of the United Nations 2030 Agenda for Sustainable Development and accompanying Sustainable Development Goals (SDG). SDG 12, focusing on “Responsible Consumption & Production”, includes as goal 12.7 the target to “promote public procurement practices that are sustainable, in accordance with national policies and priorities”. A number of other international bodies have also started to increasingly focus their attention, within their particular mandates, on public procurement. For example, one of the focus areas of the UN Working Group on Business and Human Rights is the “state-business nexus”, which includes interrogating “economic diplomacy tools”, such as public procurement as part of states’ duty to protect against human rights abuses and as a policy area with “tremendous potential to contribute positively to advancing human rights and sustainable development”.3 Another example is the UN Committee on Economic, Social and Cultural Rights, which recommended in its General Comment No. 24 of 2017 that as part of their obligations under the International Covenant on Economic, Social and Cultural Rights, States should “revise . . .
public procurement contracts, . . . in case of human rights violations, thus aligning business incentives with human rights responsibilities” and that “in their public procurement regimes, States could deny the awarding of public contracts to companies that have not provided information on the social or environmental impacts of their activities or that have not put in place measures to ensure that they act with due diligence to avoid or mitigate any negative impacts on the rights under the Covenant”.4
These developments, and many similar ones emerging from a wide range of different contexts, have brought the notion of sustainable public procurement (SPP) to the core of mainstream thought on public procurement (law) internationally. SPP can be understood as the “process whereby organisations meet their needs for goods, services, works and utilities in a way that achieves value for money on a whole life basis in terms of generating benefits not only to the organisation, but also to society and the economy, whilst minimising damage to the environment”.5 Hansson and Johansson capture the essence of SPP as “a sustainable development perspective on public procurement, whereby economic, environmental and social aspects of development are considered holistically.”6
From the perspective of regulating public procurement, the question subsequently emerges whether these developments have ushered in a new animating feature of public procurement law internationally. Are we witnessing the emergence of sustainable development as a competitor to free international trade at the heart of the objectives of public procurement law?
It is probably too early to tell whether sustainable development will eventually trump international trade as the dominant goal of public procurement law, viewed internationally. It is arguably fair to already claim that a greater degree of balancing between these two objectives are more readily accepted as necessary within mainstream thought on public procurement law. The impact of sustainable development on conventional wisdom in public procurement law remains to be seen, such as, for example, the role that competition plays in procurement law systems. One result could be that a larger range of ways of securing public contracts could be in the making alongside the ascension of SPP. One of the very interesting questions that emerges is what the state’s engagement with the private supply market could look like if competition is no longer a hegemonic notion in procurement law.
1 S Arrowsmith ‘The past and future evolution of EC procurement law: from framework to common code?’ (2006) 35 Public Contract Law Journal 337 at 338.
2 S Karangizi ‘The COMESA Public Procurement Reform Initiative’ (2005) 14 Public Procurement Law Review NA51 at NA52.
3 UN Working Group on Business and Human Rights ‘The State as an economic actor: the role of economic diplomacy tools to promote business respect of human rights’ http://www.ohchr.org/_layouts/15/WopiFrame.aspx?sourcedoc=/Documents/Issues/Business/ConceptNoteUNWG_ConsultationSep2017.docx&action=default.
4 Committee on Economic, Social and Cultural Rights General Comment No. 24 (2017) on State Obligations under the International Covenant on Economic, Social and Cultural Rights in the Context of Business Activities (10 August 2017).
5 Definition adopted by the Task Force on Sustainable Public Procurement led by Switzerland (membership includes Switzerland, USA, UK, Norway, Philippines, Argentina, Ghana, Mexico, China, Czech Republic, State of Sao Paolo (Brazil), UNEP, IISD, International Labour Organisation (ILO), European Commission (DG-Environment) and International Council for Local Environmental Initiatives (ICLEI) and adopted in the context of the Marrakech Process on Sustainable Production and consumption led by UNEP and UN DESA.
6 LW Hansson & S Johansson ‘Institutional incentives for sustainable public procurement: a case study of sustainability considerations in the Swedish construction sector’ (2017) Public Procurement Law Review 220 at 221.
