pa0043 sub community action network.pdf

7/24/2019 PA0043 SUB COMMUNITY ACTION NETWORK.pdf

1/38

Our Ref: 29N.PA0043

P A RegRef:

Your Ref:

Community Action Network

C/o Peter Dorman

44 Lower Gardiner Street

Dublin

6th

October 2015

Dear Sir,

Re:

Health Infrastructure Development comprising National Paediatric

Hospital, Innovation Centre and Family Accommodation Unit at St

James' Hospital Campus, Satellite Centres at Tallaght Connolly

Hospitals and Construction Compound at Davitt Road, Dublin.

An Bord Pleanala bas received your recent submission in relation to

the

above mentioned proposed development and will

take it into consideration in its determinationof the matter. A receipt for the fee lodged is enclosed.

The Board

will

revert

to

you

in

due course with regard to

the

matter.

Please be advised that copies of all submissions

I

observations received in relation to the application will be made

available

for

public inspection at the offices of Dublin City Council, Fingal County Council and South Dublin County

Council and at the offices of An Bord Pleanala when they have been processed

by

the Board.

If you have any queries

in

the meantime please contact the undersigned officer

of

the Board. Please quote the above

mentioned

An

Bord Pleanala reference number in any correspondence or telephone contact with the Board.

Yours faithfully,

Encis.

ADHOC/P A0043/0 1

t l Sraul MauilhhriC.1ll

l - . 1 ~ UII Kn ~ ~ ~ ~ ~ ~

l


2/38

Our Ref: 29N.PA0043

P.A.Reg.Ref:

Your Ref:

Paul O'Neill

National Paediatric Hospital Development Board

C/0 G.V.A. Planning Regeneration

Floor

2,

Seagrave House

19-20 Earlsfort Terrace

Dublin 2

5th October 2015

Dear Sir,

Re:

Health Infrastructure Development comprising National Paediatric


James' Hospital Campus, Satellite Centres at Tallaght & Connolly


An Bord Pleanala

T

Enclosed for your information is a copy of submission(s) received by the Board in relation to the above mentioned

proposed development.

Ifyou have any queries in relation to the matter please contact the undersigned officer

of

the Board.

Please quote the above mentionedAn Bord Pleamila reference number in any correspondence

or

telephone contact with

the Board.

Yours faithfully,

Encls.

PA08.LTR

1>1 Sr iio l

l>lanilhhridc.

IIaile

A1ha

Cl

ialh

I

Tell

llll XII

HI Tel

Gl.111

Ailitiil

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LnColl

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3/38

Our

Ref: 29N.PA0043

P.A.Reg.Ref:

Your Ref:

Chief Executive Officer

Dublin City Council

Civic Offices

Wood Quay

Dublin 8

5th October

2015

Dear Sir/Madam,

Re: Health Infrastructure Development comprising National Paediatric



Hospitals

and

Construction Compound at Davitt Road, Dublin.

Enclosed for your infonnation are two copies of submissions received by the Board in relation to the above mentioned


Please ensure that a copyofeach submission is available for public inspection

at

the offices

of

he planning authority.

If

you have any queries in relation

to

this matter please contact the undersigned officer

of

the Board. Please quote

the

above mentionedAn Bord Pleanala reference number in any correspondence or telephone contact with the Board.

Yours faithfully,

Encls.

ADHOC

/PA0043 /

02

t l

Sraid M u n i l h h r i d ~

llailc \ t h ~ Cli:uh I

Tcil (01) X I HI Tel

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mail

I I larllmruugh Stn d

Ouhlin I


4/38

Our Ref: 29N.PA0043

P.A.Reg.Ref:

Your

Ref:


Fingal County Council

County Hall

Main Street

Swords

County Dublin

5th October 2015

Dear Sir/Madam,





Enclosed for your information are two copies of submissions received by the Board

in

relation to the above mentioned


Please ensure that a copyof each submission is available for public inspectionat the offices

of

he planning authority.

If you have any queries in relation to this matter please contact the undersigned officer of the Board. Please quote the

above mentioned n Bord Pleanala referencenumberin any correspondenceor telephone contact with the Board.

Yours faithfully,

m ~

an Somers

~ u t i v e officer

Direct Line:Ol-8737107

En cis.

ADHOC/PA0043/ 2

M

Srait.ll\lanilhhrilk.

II Jlic

Atha Chath I

Tctl (01)

i ~ X

X

HXI

Tel

Glat> \11it11l ~ l 2 7 ~ LnC 11l

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Grea,:illl rlcanala

IC

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Street

Duhlm I


5/38

Our Ref:

29N.PA0043

P A Reg Rcf:

Your Ref:


South Dublin County Council

County Hall

Tallaght

Dublin 24

5th October

2015

Dear Sir/Madam,



James' Hospital Campus, Satellite Centres at Tallaght & Connolly


n Bord Pleanala

Enclosed for your infonnation are two copies of submissions received by the Board in relation to the above mentioned


Please ensure that a copyof each submission

is

available for public inspection at the officesof the planning authority.

If

you have any queries in relation to this matter please contact the undersigned officer of the Board. Please quote the

above mentionedAn Bord

Plean{da

reference number

in

any correspondence or telephone contact with the Board.

Yours faithfully,

ran

Somers

cutive Officer

Direct

Line:O

1-8

7371

07

Encls.

ADHOC/PA0043/02

(>I Sri 1

:l.liorllwrnugh S1n-c1

Duhhn I


6/38

Placing People at the Heart of Change

44 Lower Gardiner Street

Dublin 1

01 8788005

www.canactjon.ie

September 30th 2 15

A ~

~ O R f l

O t E / . ~ A L A

TIM: { _ ;:\\i L J . I I ~

0 l

OCT Gi5

AN BORD PLEANALA

Received: o2 C 8QlS

Fee

:

s o l

Ccl.BQ

Receipt No:

00

t 1

Submission in support

of

the Planning Application

for

the

New Children s Hospital

for

the

StJames Site.

Planning application number - PA0043

Community action Network (CAN) would like to make a submission in support

of

the Planning Application for the New Children s Hospital for the Stjames Site.

About CAN and our interest

in

the Application

Community action Network is a Community development

NGO

which

has

worked

for almost 30 years in the Dublin 8 area. Our work has involved developing local

community leadership, working

for

better housing health and educational outcomes

for

people in the area and using innovation

to

tackle important issues such

as

community safety.

This is a neighbourhood characterised by high levels of social exclusion. One of the

key drivers of this exclusion are pockets of high levels of unemployment. For

example, the lnchicore B Electoral division has only 42 of its population at work

compared

with 51

in Dublin.

Of

those in work,

24

are in elemental occupations

as

opposed to just 12 in Dublin

as

a whole. 55 of the population have only

achieved a lower secondary education as compared with 33 in Dublin.

In Dolphin House, a recent survey found 34 unemployment on the estate. 55 of

people did not have a leaving cert or higher and 19

of

households had one person

with literacy difficulties.

We

are interested in the Planning application because we believe the location

of

the

NCH in Dublin 8 will have an enormous positive impact on the Regeneration of the

area.

Community

Benefit

In recent years CAN

has

been proposing the use of Community Benefit clauses in

public procurement

to achieve better targeted training and recruitment outcomes

for disadvantaged groups. This involves public bodies, such

as

Local Authorities or

Government Departments with a remit for creating social benefit, requiring

contractors winning procurement bids to provide added social value. CAN has

published lrelands first guide

to

the use

of

social clauses (attached), and has

worked with the Regeneration Boards in St Teresa s Gardens and Dolphin House,

1


7/38

and with Dublin City Council

to

include such clauses in the contracts for

Regeneration works on both estates.

CAN has also proposed that the Children's Hospital also include such measures in

its procurement. We have been delighted that both the Children's Hospital Group

CHG)

and the National Paediatric Hospital Development Board

NPHDB)

have

wholeheartedly embraced this project. This began the development

of

a Community

Benefit Programme

for

the area centred on the development of the NCH.

The Development of the NCH

Community

Benefit Programme

In 2013 following the announcement of the NCH

for

Rialto in late 2012, CAN met

with

four

local Regeneration Projects in FatimajHerberton, Dolphin House, St

Michael's lnchicore and St Teresa's Gardens and proposed that the community

benefit programme

for

the area should be requested.

In 2013, the Regeneration Boards held meetings with John Pollock of the NPHDB

and Eilish Hardiman of the

CHG to

discuss the potential. Contact

was

made with

Glasgow Southern General Hospital, where a Community Engagement Officer, Mark

MacAllister employed by the NHS, had Jed a Community Benefit Programme. This

had led to clauses in contracts

for

the building and equipping of that hospital

targeting training and recruitment for 2 50 new entrants to the labour market and

measures to support training for people in construction careers. In 2014, Mr

MacAllister

came to

Dublin make a presentation about the Glasgow Project. Key

points made in the presentation

included

The targets in the clauses were exceeded, with 400 individual long term

unemployed people working on the build

as

well

as

106 new apprentices.

A study was carried out in advance of the project to identify the potential

benefits

of

the building

of

and operation

of

the hospital

The Community Benefit was achieved through including clauses in the

building contracts, but also in orientating local community towards careers in

the operational hospital. This involved career support work with local schools

as

well

as

the

NHS

working closely with local colleges

to

design courses in

health careers.

A Community Benefit Co-ordinator was employed

to

drive and oversee the

project.

Following the presentation

it

was proposed

to

establish a Community Benefit

Oversight Group made up of the key agencies needed realise such a project here.

The three Hospital Boards,

CHG,

NPHDG

and StJames' all agreed

to

be part

of

the

group. The Department

of

Social Protection, the City

of

Dublin Education and

Training Board, the Health Service Executive, Tusla, Dublin City Council, the Garda

Slochana the Canal Communities Partnership and the

four

Regeneration Boards

named above are all represented by senior staff. Gordon

Jeyes, CEO

of Tusla, who

has extensive experience of this work in Scotland was approached to serve as an

independent chair.

Following a visit of members of this Oversight Group

to

the Glasgow project in early

2015, the NPHDB funded Ernst and Young to carry

out

a foundational study

for

the

project which is called Harnessing the Potential. This study, which is to be

published and launched in the coming months, found that there is considerable


8/38

potential for the local community to benefit from the build and operation of the

NCH. This arises from the 1700 full time job hours available through the build and

the rolling career opportunities across the hospital when

it

is up and running. It

further concludes that the Dublin 8 locality has a real need

for

such a boost which

can be achieved through targeted training and recruitment in clauses, and through

career development measures in the community centred on hospital jobs. The

EY

study also proposes measures to support small and social enterprises to benefit

from procurement opportunities

for

the study.

A

draft of

the EY study is included in planning application papers and can

be

found

here

http: /www.nchplanning.ie/wp content/uploads/201 5/07 4 Harnessing the-

Potential.pdf

Members of the Oversight Group have also pooled resources to employ a

Community Benefit Co-ordinator who would drive this work.

The Group

has

also established three sub-groups

to

develop the project

A training and employment group to develop pathways for local people to

participate in the workforce on the

build

An Enterprise group to develop pathways for social and small enterprises to

participate in the build and Hospital procurement

A Career development group to support career development for local young

people in the StJames and

NCH

facilities

All of this shows the commitment of the CHG and the NPHDB to generating real

benefit

for

local community Regeneration arising from this project.

Summary

CAN

submits that the location

of

the Hospital in Rialto will afford real benefit to a

local community that needs regeneration.

1.

The local area is particularly disadvantaged in terms

of

employment and

education, as evidenced in the EY study Harnessing the Potential

2.

It

is

possible to make a significant contribution to addressing this need by

using the procurement involved for targeted training and recruitment in line

with

EU

and National policy and Directives -

as

evidenced in A Primer on

Social Clauses in Ireland and the experience in Glasgow Southern General. It

is also possible to generate strong career pathways into the hospital campus,

which, taking StJames and the NCH together, will employ 7,000 people, as

evidenced by the experience of Glasgow in building partnerships between

schools, colleges and the Hospital.

3. The commitment

of

all parties required to make this potential a reality is real

and strong

as

evidenced by the working relationships in the Oversight Group

and its sub-groups, the commissioning of the

EY

study and the commitment

to

fund a community benefit co-ordinator.

N

L

4. This opportunity will

be

lost to the area shed d

~ ~ f i l l

i j q , 8 - % g r a n t e d

There is no guarantee

that

another location

W

utdllefford

the

~ . , . . ,

..: ...

0 2 OCT 2 \5

3

LTRD TED FROM _

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9/38

benefit. Certainly the infrastructure achieved

to

realise benefit in Dublin 8

would

be

lost.

P ~ s Porr-o--. ?,Of { ILe>l >

Peter Dorman

On behalf o the Board and Staff o Community action Network

r AN BORD PLEANALA

B l -

1 \M C_ - -

0 1 OC17.0 S

F R O M ~

L i R O A i E O ~ - 1

~ L

4


10/38

I


11/38

A primer on the use

of

social clau ses in reland

ontents

INTRODUCT

'

;..:

- - - -

FOREWORD

RICHARD

MACFARLANE

P4_

__

P6

PART 1

SOCIAL

CLAUSES-THEIR LEGALITY INTHE

EU

AND IRELAND P1 0

EXECUTIVE SUMMARY P10

1

PUBLIC PROCUREMENT

-

DEFINITION AND LEGAL FRAMEWORK

P11

SOCIAL CLAUSES IN PROCUREMENT P14

3 LEGAL

BASIS FOR

SOCIAL

ClAUSES AT EU LEVEL P15

4

LEGAL BASIS FOR

SOCIAL

CLAUSES

IN IRELAND

P16

SLEGAL PARAMETERS OF IRISH

PUBLIC

BODIES

P18

PART

2 HOW TO INCLUDE

SOCIAL CLAUSES

IN

PROCUREMENT STEP BY STEP

P24

STEP 1:

POLICIES AND COMMITMENT P24

STEP

: DECIDE

ON

CONTRACT OPTIONS P25

STEP 3:CREATE

A BUSINESS CASE

P26

STEP 4:OJEU

CONTRACT NOTICE

P27

STEP

5: PREQUALIFICATION QUESTIONNAIRE (PQQ)

...

P28

STEP 6: NVITATION TO

TENDER

P28

STEP

7:

SPECIFICATIONS ... P29

STEP :

AWARDPROCESS

. '

P29

STEP 9:

CONTRACT

CONDITIONS - P3;:

STEP 10: MPLEMENTATION

AND MONITORINGTHE PERFORMANCE OF THE CONTRACTOR P3

0

PART

3

FREQUENTLY

ASKED QUESTIONS

AND ANSWERS

P32

PART 4 THE FUTURE FOR SOCIALLY

SUSTAINABLE

PROCUREMENT

P38

PART

5

APPENDICES

P44

APPENDIX 1:

SOCIAL

PROCUREMENTIN CASE AW

P44

APPENDIX

2:

EXPLAIN

_:N

G

THE TERMINOLOGY

: A

GLOSSARY

OFf f

RMS r , . ps

APPENDIX

3:

FURTHER RESOURCES

D w n

r::

U11 A

TIME BY___

0 2 OCT

2015

PL

3

L


12/38

A

rimer

on the useofsocial

clauses

in reand INTRODUCTION

IIIIU

ntroduction

4

Public Procurement accounts

for

18%

of

Gross Domestic Product

in Europe, and the Irish State spend s8.Sbn every yearon goods

and services. There is a growing interest in finding ways for this

expenditure

to

be used

to

deliver wider social, environmental and

economic benefits.

The concept offfsocially responsibly procurement" places social considerations at the heart

of

he

procurement

process. One

aspect of hIs

is

the

use

of Social

Clauses

.

These

are cia uses that can

be

integrated in the procurement

process

that allow

social

and environmental considerations to be

included in the contract specification and

used

in the selection and award procedures.

This Primer,

written by Deirdre Halloran,

RC

Scholar from the

aw

Department

of NUl Galway,

demonstrates th e

scope to

ncorporate

Social Clauses

in public procurement contracts in Ireland.

The

primer

ocuses on

how wider communit y benefitssuch

as

targeted recruitment and training can be considered during

public procurement processes.The new EU 2014 Directives', which will be transposed in Ireland at

the end of

2015

,will allow further progress

of social and

environmental considerations in

procurement procedures.

Community Action Network s a small NGO with a social us tice agenda. Over the

years,

we have been

involved in major public nvestme nt projects designed to alleviate social disadvantage, particularly

in the area of he regeneration of housing estates. n so doing, we have adopted a Human Rights

Approach to bring the State to account as Duty Bearers, responsible for respecting,protecting and

promoting HumanRights.

In this work we have collaborated with Deirdre Halloran and Dr. Padraic Kenna

of

he Law department

of

NUl Galway.Dr.

Kenna

worked with us to establish mi nimum core obligations for the State,under the

r i h t to adequate in the Dolphin House Complex and suggested that the subsequent

regeneration could include

Social Clauses

.

Since then, Deirdre has supported CAN in advancing the inclusion of Social Clauses in the Regenerations

of St

Teresa'sGardens and Dolphin House, and in the build and operation of he New Children's Hospital

NCH) on the nearby StJames' Campus .As a result of his work, both regeneration boards have adopted

Social

Clauses as

a goal in their regenerations,Dublin City Council

has

adopted a motion to include

Socia l Clauses in all procurement and the StJames' NCH campus development authorities have

also

committed to the policy.

But much more needs to be done.Hearts

and minds need to be won over to this

opportunity within the government,

statutorybodies, contractors and

communities.More practically hose

involved with procurement need to

understand how to operate a socially

responsible procurement programme.

Community Action Network and our

collaborators believe that we have

a duty o

use

every available

opportunityto address social

inequality n our society.Particularly in

times

of

scarce resources, we need to

maximise every opportunity to

address

disadvantagessuch as systemic

unemployment, ower educational

opportunities, iving in degraded

environments and inequalities in

healthcare.The use

of

Social Clauses

in public procurement

s

one such

opportunity.

t

provides added value

from investment by generating

real

social and economic benefit for

disadvantaged communities.This

opportunity has not been realised

in Ireland

as yet

CAN believes that public procurement

should be seen as a abour market

intervention, assisting those struggling

to find employment. Howeverhis poses

a challenge not onl y

to

procurers,

but

to everyone with a responsibility for

supporting people into work. When a

procurement opportunity presents,

there needs to be a programme

of

work and career

readiness

in the

communities that

can

support people,

particularly the most disadvantaged,

o

access those opportunities.

A 1imer

on

the

use

of social

clauses

n reland INTRODUCTION

CAN is

pleased

to

offer this Primer

as

a

resource for his work.The Primer

is

in

two parts: Part One explains Social

Clauses

and deals comprehensively with

their egitimacy and legality particularly

in an Irish context . A lack

of

clarity in

relation to their egal basis is the most

common

reason

given for not using

them in procurement in Ireland.

Part Two deals with the practical

applications of

Social

Clauses.

This section contains a step-by-step

process for the use of Social

Clauses

in

procurement and addresses questions

about costs,monitoring and compliance.

Finally, we are deeply grat eful to Padraic

for

his vision and

support and to Deirdre for her ireless work in supporting

us

by

explaining and promoting Social Clauses.

Peter Dorman

Community Action Network

5


13/38

A

m ~ r

on t 1e usc of

souJI (ouses

In lre o

nd

RICHARD MACFARLANE

II

Ill

I

I

Ill

Ill I

'11 '11 '

111 1

'

11

'1

'

11

1 l11 . I

oreword

6

This Primer is very timely. The Government in the Republic

of

Ireland

is

currently piloting

an

approach and a number

of

other public sector

developers in Dublin are interested in the Social Clause proposition

that has been

put

forward by the

Community

Action Net work and

Deirdre Halloran

of

the Law Department

of

NUl Galway.

tl

wse

deve:opers

do not ha

ve to 'r

e:nvert

the \J h

ee, f o ~

re a:1d: the

re

is

good

practil e that can

be Jdop:ed

fwm

tnr. LK where Soc i

al

Cl;n;ses,


14/38


15/38

A rrmer on the use of sam\ c ausesm \retand- PART ONE SOCIAl ClAUSES THEIR

lEGALITY

IN THE

EU

AND IRELAND

10

IAL CLAUSES

EIR LEGALITY IN THE EU

~ m I I I ~ I ~

Executive

ummary

Since 2008, Irish governments have prioritised fiscal consolidation in

their budgetar y policies, and have reduced national spendi ng and

funding for core public services such as health, welfare, and housing.

Seven years of austerity have hit disadvantaged groups the hardest,

making them more vulnerable

to

unemployment, lower incomes and

oorer liv ing standards.

However, there is a way for the State to support businesses and ind ividuals without adjusting their

budgetary policies.The people responsible for buying services and goods for the State can do so in a

way that provides additional benefits for people and commu nities,especially those wi th the greatest

needs. A report for the Joseph Rowntree Foundation clea rly shows that even in times

of

austerity,

public procurement can be used

to

drive forward improvements in economic,socia l and envi ronmental

well-being.

3

This

is

called SociallyResponsible Public Procurement.One way of doing th

is is

by the

f ocial Clauses.

Socially Responsible P ublic Procurement s not a radical notion, t has bee n t ried and tested th roug hout

Europe. In the UK, local authorities and other public bodies are particularly adept at ncorporat ing social

and economic benefits into procurement programmes, nsp ired by t he work

of

Richard Ma cfarlane and

his 2002 e m i ~ ~ l r e p o r t - Achieving community benefits through contr

acts:

Law policy and practice

If' .

The ground-breaking work done in

UK

laid the foundation for

th

is

Pri

mer.Our goal

is

to provide clear

information on

how

public bodies can use Social Clauses

in

Ireland. E ements

of

he

Primer are detailed

and technical in nat.ure, this

is

because

the

procurement process

is

co mplex and

to ac

hieve

su

ccessful

outcomes, t is vital c o ~ p l y with legal and policy

fra

meworks.

.

Th

2 Pr;r

1er

explains wh

Y,

Social Clauses are a legitimate step to take in t he Public Procurement process.

lr1

Part One, Publi c Procu_rement

is

defined and the regulatory framewor k explained.

We

demonstrate

how Social Clauses fit into this framework and clarify t heir ustification and lega lity,

bot

h in an EU and

an Irish context. Part Two

is

a guide as to how to include Social Clauses in the Public Procurement

Process in Ireland, and Part Three contains answers to Fre quently Asked Questions, and finally we look

to

what we can expect n the future for this im ortant area of law.

'Richcnd M a c r c ~ a n e . lccktlng Poverty through

PubUc

Procurement l aw. poUcyono

Joseph Rowntree Fcundoflon.

201A.

Combddge Dlctlonorv.

See

Commlsl;lon or th ~ r o t r e In de

l

vering community benefitsend social value' , c report 101 the

A. The

Cost or Non-Europe n Public Sector Procurement (Ortlclcl Publico ionsor theeEuropeon Corrmunlt

es. Tt>e

Cast or Non Europe Basic F nd ngs. Vol.5 Port

uropeon Communities. uxe mbourg. 1968)

I

I

1PUBLIC PROCUREMENT- DEFINITION

A

ND

LEGAl

FRAMEWORK

Public Procurement

s

the buying

of

goods and servicesby Public Bodies.

4

In Ireland, his

is

regulated largely

by rules emanating from

the EU.

Traditionally, Public Procurement law

was understood to have

two

aims: to

provide value for taxpayers' money and

to promote and develop he Internal

Market

of

he EU.In order o achieve

these goals, the EU 's public procurement

market was made open

to

competition;

preventing protectionist policies and

promoting the free movementof goods

and services throughout EU Member

States.

5

However,

6

the implementation

of

shared

EU

policies, such

as promoting

objectives concerning the environment,

consumersand society emerged

as

an

additional

goa1,7

This is where Socially

Responsible Procurement obtains its

legal authority.

Prim

ary egislation

European Procurement R egulation is

based on

the

Treaties of he European

Union.The fundamental principles

that underpin Procurement Regulation

are set

out

n

two

core treaties: the

Treaty on European Union and the

Treaty on the Functioning of he

European Union (TFEU).

The Fundamental Principles are:

8

A

rimer on the use of social

clauses

in

Ireland

PART ONE

SOCIAL CLAUSES

THEIR LEGALITY IN THE EU AND IRELAND

between MemberStates. t herefore

forbids measures that hinder or

discourage free trade in goods.

Freedom of

establishment:

9

this enables an economic operator

(whether a person or a company)

to

carry

out

an economic activity n a

stable and continuous way

in

one

or

more Member States. Measures that

restrict access

to

public contracts for

such firms may nfringe his provision.

Freedom to provide services:

this enables an economic operator

(whether natural

or

egal persons),

providing services in one Member

State,

to

offer services on a temporary

basis

in

another Member State,

with

out

having

to

be established. The

provision prohibits a

Member

State

from preventing

EU

enterprises from

other Member States from providing

services with n its terr itory. This

includes restricting their participation

in government contracts.

Free

movement of workers:

0

The

prindple of

non-discrimination:

11

This is a general prohibition on

discrimination on grounds

of

nationality,

sex,

racial

or

ethnic

origin, eligion or belief, disabilit y

age

or

sexual orien tation. I t covers

both direct discrimination and indirect

discrimination. Article 34,49

and

56 also

implement his

principle

within

their scope.

The rules

in

the Treaties,

and amendments to them,

are directly applicable.

This means that they are

legally binding on

Member States, when they

act

within

the scope of

EU

law. Unlike Directives,

they

do

not require any

further

action

by

Member States. '

-

..

N

BORo PLEANALA---,

TIME

BY

-

02

O T

2015

'*-

.. -

Feedom of movement of goods:

th

is

prohibits

Hall

quantitative

restrictionson imports and all

measures having equivalent effect

secures

the

right

of

any

EU

citizen

to

live and

work

in other

EU

Member

States. This mean s that nsofar as the

contract requires

job or

raining

opportunities

to be

made available

to

obseekers from a defined area or

registered with a named agency,

residents from anywhere

n

the EU

who are living in the defined

area

or

register with the agency, must be

tr

eated equally

with other

people.

' it

I

\

..

LTRD TED FROM

.1

_P _

1

.....

-

;

o o

;

AuowsmUh and

Kunzlk

soc ial end Environmental Po ces n

EC

Procurement ow ; Cambrid

ge 2C04)

see Commission nterpretative Commun catiOn on the

Community row. Appllcoble o public procurement

end

he P05.Sb

mt

res lor ntegr

at ng

social consfdercllons nto

pub

ic pr

ocu

rement. COM(2001) 566. 15 Oc tobe r

200

1

Also. Commission ln terpretcllve Communic

at

on on the Communty ow

Appi

cable to public procu rement end the pcsslb

n

tles for Integrating

environmental o n ~ d e r l l o n s into public procurement. CO M(2001) 274 4 Ju ly 200. Article34

FEU

Art cle 49

TFEU

Article 45

FEU

. Art 16

FEU

,..._

11


16/38

A

rimer

on th

use of

sooa

clauses in

Ireland

PART ONE SOCIAL

CLAUSES THEIR

LEGALITY INTHE EU

AND IRELAND

1111u

_ I

.....

...,

"

Primary legislation continued

UnderEU law, a directly applicable provision

of

he TFEU will

override any inconsistent

constitutional

or

egislative provi sion. This is

known as the principle

of

supremacy of EU law

over nationallaw.

12

Therefore, a national court

must disregard any part

of

national legislation

that

conflicts

with the

TFEU. Similarly,

he

administrative authorities

of Member

States

must apply

the

directly applicable

EU

rules

above conflicting national rules,

or

hey will be

in violation

of

EU law. This means hat, when

awarding

their

procurement

contracts,

Contracting Authorities

In

Member

States

must adhere o he

TFEU

rules relating to

public procurement,

even if

national aw

specifies

something different.

However, hese TFEU principles alone were

considered insufficient

to open up

procurement

markets.To eliminate discriminatory practices,

it was considered necessary for contracts

to

be

awarded via transparent procedures. To ensure

this, the EU adopted Directives which regulate

award procedures

for

majorcontracts these

require,

for

example,

hat Member

States should

advertise their contr acts across Europe and

should award them using only certain criteria.

The Directives ensure that companies from across

the EU

have the opportunity

to

compete for

public

contracts (above

defined

thresholds).' )

They also serve

to

enshrine principles derived

m theTFEU, such

as

the principle of equal

trea t, he principleof mutual recognition,

the princi of

proportionality

and the

transparency.

t

Equal

treatment:

This requires

that

Contracting Authorities are

obliged to treat each tenderer in the same way,

without

favour

or

prejudice on grounds

of

nationality

or

any other grounds, during the

procure ment process,

giving

each

one

an equal

chance

to

participate

n the

competition and

to

win the contract.

Mutual

recognition:

A MemberState must accept

the

products and

services suppli ed by other Member States,

on condition that the products

or

services are

suitable for heir ntended purpose.

Proportionality:

This requires that he demands placed upon

suppliers should be both relevant and directly

related

to

the contract being awarded.

Transparency:

This requires

that

public contracts are awarded

in accordance

with

clear rules the application

of

which can be objectively verified.

~ ~

~ ~ ~ ~

e t ~ I /;

o I

< J

v

l

j

1 . .

. r l }

. I ,.

I

1

: I I

' j I

.i

1 '

J

i t- 1 ..

.

1 . . .

~ ~

Jt

1 : ~ r

;

: 11 ..

'I I

L . -

j

I; . .

12

case 6/6A, Flomlnlo Costa v Enel ( Cosio ) 1196A) ECI? 585. ''As ol January

20

14

. w .

Go

vernment Dep011ments : 01nces

and

207.((() ror Local and Regional Autha'lll l

ho

esho d s 5,1

6.

000. Suppl es and

Se

rv iCe$ Threshold ls 134

((()tor

From etenders.gov . e at

http

e t e n d e r s . g o v . I B I M e d l o i O e r a u l t / S i t e C o n t e n t / l e g

a n d

public bodiesoutsde the U U essec tor

0

nGuldes 3.1hreShods2014 pdt

A nmer on the use of social clauses

in

Ireand PART ONE SOCIAL CLAUSES

THEIR LEGALITY

INTHE

EU

AND IRELAND

SECONDARY LEGISLATION

The main public procurement Directives are:

f

Directive 2004/18/EC the Public

Sector

Directive

II Directive 2004/17/EC-the Utilltles Directive

Ill

Directive 89/665/EEC-

the

Public

Sector

Remedies Directive

The European Parliament and

the

Council adopted three

new

Procurement Directives in spring of 2014.1reland and all other

Member States are required

to mplement/

ranspose the

new

Directives

into

national legislation

by

17 April2016.

14

On 26

February 2015, Regulations

to

mplement

he

new

EU

procurement Directive (Directive 2014/24/

EU

) came into

force in the UK.

15

The New Directives

Public Procurement

: Directive 2014/24/

EU

on

public procurement, which repeals

Directive 2004/ 18/

EC

Utilities:

Directive 2014/

25

/

EU

on

procurement

by

entities operating in

the

water, energy, ransport and postal services

sectors,

which

repeals D

ir

ec

tiv

e 200

4/

17

EC

;

Concessions: Directive 2014

/2

3/

EU

on

the

award

of

Concession Contracts, which does

n

ot

directly replace any previous Directive.

Th e Procurement Directives set out a framework

of

ules,

regulating he procurement

of

certain types

of

public and

ut ilities contracts.They apply

o

contracts by MContracting

o r i t i e s ~ in the public sector andMContracting Entitles"

in the utilities sectors, which are above certain financial

thresh olds. They ncludean obl igation

to

award contracts

foll

ow

ing a call

for competition

wh

ic

h m

us

t

be

adve

rti

sed

in

the Official Journal

of he

European Commun

it

y (

OJEU

), and

sets down

minimum time

imits

or

firms

to

respond

to

such

calls, to ensure that firms

from

other Member States also have

time to respond.Case law underlines

that he

Directives merely

set ou t a framework

of

rules;MemberStates remain

fr

ee

to

ad

opt

additional national laws on

pub

lic procurement

provided that these laws are in accordance

with

the rules set

out in the Directives and EU Treaty Provisions.

EU

Directives have been i

mp

lemen

ted into

rish law by mea ns

of

he ollowing statutory instruments:

The European Communities (Award

of

Public Sector

Cont racts) Regulations 2006, S

I

.No. 329

of

2006

implementingDirective 2004/18/EC, the Public

Contracts Direct ive;

The European Communities (Award

of

Contracts by

Utility Undertakings) Regulations 2007,51 No. 50

of

2007 mplementing Directive 2004/ 17/EC, the Utilities

Contracts D

ir

ective;

The European Communiti es (Public Authori ties'

Contracts) Regulations 2010,

S.l. No

. 130

of

2010 and

the

European Commun

iti

es (Award

of

Contracts

by

Utili

ty

Undertakings) Regulations 2010

S.l.

No.

131

of

2010,

implementingDirective 2007/66/

EC the

Remedies Directi ve.

Fig 1 U Law and he Irish Legal

Framewor

k

T

eaty r o v i ~ i o m

to

all

Pub l

ic

P

ocuremen

t

Contracts)

Freedom of Movement of Goods, (Art 34 )

freed om

:J

f

.V.

ovement of Workers ( Art 43)

Freedom of Establishment (Art 49)

Der

i

ved

Princip les (

appli

es to

all

P

ub

lic

ProcurementContracts)

Equal tr eatment

Non-discrimination

Mutual recognition

Proportionality

Transparency

EUD

rect

ives (

app

lies

to

PublicContracts a

bove

acertan hresho ld)

Directi

ve

2004/ 18/ EC the Consoliduted or Public

Contr acts Directive

Directive 2004 /1 7/EC, the LJtilities Directive

Directi

ve

2007/

66

/EC the

Re

m

Pdies

Dire iv

'V

Irish

Regulations

(applies to Public

Contracts above

a

certain threshold)

The European Communities (Award of Public Sector

Contracts) Regulations 2

006

Th

e

Eu

ropean Commun iti es (Award

of Con

t racts by Utili

ty

Undertakings) Regulations 2007

The European Communit ies (Public Authorities ' Co ntracts)

Regulat ions 2010 and the European Co

mmunities

(Award

of

Contractsby Utili Undertakings)

AN BORD PLEANALA

TIME BY

0 2

OCT

2015

LTRDATED FROM

'From the Otrlce ot Government Procurement website:hltp www procu remen t ie l ; j

'Publc

Fin

ance

Sc

rut iny U

ni

t

(2

015) A Comporat ve Perspective on Public Procurement Requirements social e n v ~ c :

]

e 13

(17 Aprh 2015, Northern Ireland Assemby).


17/38

A

rimer

on

he

u e of ocial {lauses in Ireland- PART ONE SOCIAL

CLAUSES THEIR

LEGALITY IN THE EU AND IRELAND

~

14

2 SOCIAL CLAUSES IN PROCUREMENT

Justification

for

Social Clauses

EU policy embrace s the conceptof Sustainable

Development, which has been defin ed as:

Ndevelopment

that

meets

the

needs of

the

present without compromising

the

ability of

future generations to meet their own

needs::

16

Derived from this

concept

of Sustainable

Development

s

the idea

of

Sustainable

Procurement.This

is

a 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 by

generating benefits not

only to the organisation,

but also

to

society

and

the economy, whilst

minimising

damage

to the environment.

Generating benefits to society leads

to

the

concept

of

Socially Responsible

Procurement:

procurement that take into account Social

Considerations such as employment

opportunities, decent work, compliance with

social and labour rights, social inclusion,

equal

opportunities, accessibility design for all,

sustainability, including ethical

trade

issues

and

wider voluntary compliance with corporate

social responsibility CSR).

17

One concrete expression of Socially Responsible

Procurement

is the use

of

he Social Clause.

A Social Clause is a legal requirement within a

procurement contract which stipulates

that

the

contract must provide added social value this can

also

be

known as a Community Benefit Clause).

The most common form of Social Clause is

Targeted Training and Recruitment. Targeted

Recruitment &

Training

TRT) is

a

type

of Social

Clause that allows Contracting Authorities to

specify in the contract that labour used must be

sourced from particular groups.

TRT

clauses are

used to target the long term unemployed and

young people but can also be used to target

other

vulnerable groups.

We

can see from this that Social Clauses fit within

broad

EU

policy promoting Sustainable

Development and

the

goal of maximizing social

gain wherever possible. Procurement

is

an

opportunity

to

implement this policy through the

inclusion of contract clauses that

will

benefit

the

communitySee

ig

2

our Corm"oon Fuuce. Report

of

he Wodd Corrm sslon on Envltorment

onlc

conomv 2011).

"Article 26. he Public SectOI Directive. necllol46. the Public Sector r t l v ' 'Recrloll. Recllo15. Recltol46 ond Article 53 ol the Pubic Sed or OJ

CI

,

l'leclloll.lleclloll2 . lecllot 55

ond

Art


18/38

A rimer

on

the use of social clauses in he and PART ONE SOCIAL CLAUSES THEIR LEGALITYIN THE

EU

AND IRELAND

lUI

;

~ ~ ~ p I

c::, 0

ll

,_

-

_ a.

16

4 LEGAL BASIS FOR SOCIAL CLAUSES IN IRELAND

The

EU

Directives are ransposed into

Irish

Law

through

the Public Procurement Directives.

See:

Tables

and

2

Our research shows that there is a mistaken belief in Ireland that our Public Procurement Regulations

are less favourable

to

the inclusion of Social Clauses compared

to

the UK. As can be seen from Tables 1

and 2,

Irish

Regulations are in fact very similar in wording to UK Regulations.

One notable difference is

in

the transposition of Article 53

of he

Directive 2004/18/EC-

the

Public

Sector Directive. This concerns

the

criteria on which

the

Contracting Authorities shall base the award

of public contracts. Regulations in the UK and Ireland allow Contracting Authorities to assess which bid

is the mosteconomically d v a n t a g e o u s ~ According to the Regulations the criteria can include

nter alia:

quality, price, technical merit, aesthetic and functional characteristics, environmental characteristics,

running costs, cost-effectiveness, after-sales service and technical assistance, and delivery

date

and

delivery period or period of completion. n

the

UK, these criteria are preceded by

the

word

i n c l u d i n g ~

in Ireland

the

phrase used is: not limited While both allow for more than

the

listed criteria

to

be

considered (e.g. social considerations) the Irish wording is much clearer in this regard.

: ..

A

nme

r

on

the use ofsocial


19/38

A rm eon

he

use

or ocial clauses in

Ireland

PARTONE- SOCIAL CLAUSES THEIR LEGALITY IN

THE

EU AND IRELAND

~ 1 ~ 1

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c r

z

c r

W >

-leD

a

I

c

a:

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m

Z w

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c::;)

0

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a::

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J

>

0

( I

C , )

w

0

fi

S

LEGAL PARAMETERS OF IRISH PUBLIC BODIES

The extent

o

which Irish public bodies and Contracting Authorities can include Social Clauses

into

heir

contracts depends on:

1 Whether or not they have the legal powers

to

do so and

2 Whether or not there

are

suffident

policy

grounds for them to do so

l . legal

Powers

Contracting Authorities(

CAs)

-such

as

local authorities and

other

public bodies have their

powers set

out

n legislation.

Local Authorities

Under he Local Government Act

of

reland 2001, local authorities have general powers

of

competence

and specifically the power

to

enter contracts.

24

The general functions of ocal authorities specified in

section 62

of

he Act nclude aking such action as they consider necessary

or

desirable to

promote

the community nterest.Section 63 (3) specifically provides that, nsubjectto law, a ocal authority s

independent

n the

performance

of

ts

u n c t i o n s ~

a principle endorsed in

the

European Charter

on

Local

Self Government which Ireland has ratified.

Section 66 (3)

(a)

and (b) further extends

the power of

ocal authorities

to t a k e

such measures, engage in

such activities

or do

such things

in

accordance

with

law (including

the

incurring

of

expenditure)

as it

considers necessary

or

desirable

to promote

he nterestsof he ocal community.nits definition

of

the promotion

of

ocalcommunity nterest includes:

promoting,directly or

ndirectly, social

inclusion

or he

social, economic, environmental, recreational, cultural,

communityor

general

developmentof he administrative

area

ofthe

ocal

authority

concerned

or

of

he

ocal community.

This

is

the equivalentto the well-being power' ound in UK local government egislation and relied on

by Macfarlane, facilitating the nclusion by ocal authorities in the UK

of

social considerations in public

procurement contracts.

25

Government Departments and Other Public Bodies

The scope for other public bodies

to

promote environmental and social requirements will depend on

..tt r particular frameworks, statutory powers and the basis on which funding is provided.Many public

b i e s have broadly framed ancillary

or

subsidiary powers in addition to their main functions.

T

policies they adopt will therefore be

of

critical importance n setting

the

scope for procuring

s

tainability in its widest context.

''Loca

ct

2001. 5.63

and

5.65. Maclorlone. R.

and

n n ~ ~ - - . _

nr,e o cv '""-

our Sustainable Future. A Framework For Sustolnoble Developmen l For - ~ c i ; ( 2 Q I ' uo h l1p www pre .urement le.about u$Our mission

2) Depmrment

ol

Environment. Comrnunlfy and Local Government.

Apn

mer on the use of social clause

s n re

land PART ONE

SOCIAL CLAUSES

-

THEIR LEGALITY IN THE EU

AND

IRELAND

2.Policy Grounds

Irish Policy also supports Social Clauses.

The key frameworks are as follows:

Sustainable Development

The mission

of

he

Office

of

Government

Procurement in Ireland

s:HTo

integrate

the whole-of-Government policies

into

procurement practice, e.g. sustainable

procurement

and

encouraging

participation

by SMEs in public

procurement.

6

Sustainable

development

s

a key element

of

Ireland's economic recovery strategy

policy as laid out n the 2012,

HOurSustainable Future aFramework

for

Sustainable

Development for Ireland

and

is

defined as a continuous, guided

process

of

economic, environmental and

social change aimed at promoting

well-being

of

citizens now and in

the future.To realise this requires creating

a sustainable and resource-efficient

economy founded on a fair and ust

society, which respects the ecological

limits and carrying capacity of he

natural environment.

27

Public Procurement Reform

Reform

of

Public Procurement

s

one

of

the key priorities set out n the 2014--

2016 Public Service Reform Plan.

28

This plan advocates the use

of

procurement o l i c y ~ t o support other

Governmentpolicy considerations such

as

sustainability,social inclusion,

disability and e-enabling

the

economy.

In the long term, procurement will

s

expected

to

develop as a key strategic

lever for Government in

the

delivery

of efficiencybut also as a mechanism

to

nfluence socio-economic

developmentu

29

The Government plans

to

accelerate measures from

the new Procurement

Directives in conjuncti on

with the Department of

Jobs, Enterprise and

Innovation, Enterprise

Ireland and InterTrade

Ireland and to implement

them accordingly.

0

~

-

;

l

_

~ ~

J I J L ~ ~ ~

Regeneration

The Irish Government's aim for

regeneration schemes is

to

build

sustainable communities

through

a

combination

of

social, educational and

economic initiatives and also by

rejuvenating the

built

environment

by

demolition, constructionand

refurbishment

of

dwellings having

regard

to

urban design guidelines.

In December 2005, the Government

published its Housing Policy Framework,

Building Sustainable Communities,

to

provide ~ 2 1 s t Century vision for

housing aimed at building sustainable

c o m m u n i t i e s DeliveringHomes,

Sustaining Communities

published in

2007 provides greater detail

on

the

actions required to build sustainable

communities and to contribute overall

social and economic wellbeing.

In addition, the onus is placed on Local

Authorities

to

address these issues.

11

The Government Pianning Policy

Statement 2015Hstates that the Irish

planning process will facilitate

sustainable

ob

creation and enable

urban regeneration and strengthen

the

continued vitality

of

existing

communities.

2

.

-

AN

BORD PLEANALA

TtME_ _ B - - ~ ' 1

0 2

OCT

2 \5

l iROAlEO FROM

PL - - - ~ J

Public Service lerorm Pon

2014

2016 (January 2014, Depmlment

Ol

Pub c Expenditure

;nd

Reform). Ibid 25. rlbld 68-:> www env ron e W e b ~ t e of

n v l r o n m e n t

Communl1y

and

ocal Government. Planning Polocv Statement 2015 (

Env

lr

oment

, Communily

and

ocal Government)

ttp www environ l

ele

n/PublicotionsD

ocu

mentsiF leDownlood.39991 en.pd f accessed 2 March

2015

.

19


20/38

A nmeron the use of social clauses

in

Ireand PART ONE SOCIAL CLAUSES THEIR LEGALITY IN THE EU AND

IRELAND

1111111

~

s


21/38


22/38

A

rtmer

on the

use

of

oci

al lauses in reland P RT

TWO

HOW TO INCLUDE SOCI L CL USS IN PROCUREMENT

STEP

BY STEP

mn HOW TO INCLUDE

sociAL

CLAUSES IN PROCUREMENT

STEP

Y STEP

24

Part

ONE

of his Primer demonstrated that

it

s legally possible to use

Social Clauses in the Procurement Process. Part TWO will explain the

methodology

involved.

Step 1: Policies and Commit ment

The first

step is

to identify the policy ustifications.

n HBuy o c i a l ~

a guide to

socially responsible

public

procurement

published by

the Northern

Ireland

Investment

Board,

public

bodies are advised

to develop

and formally adopt what they call a Buy Social policy, either

as

a part of asustainable procurement

policy

or

as aseparate policy.This

can

ensure a properdecisionma

king process

and helps embed

the approach in the purchasing

organisation.

4

A commitment from

all

the Contracting Authorities

Procurement

staff o he

use

of

Social Clauses is also an

important requirement to

achieve successful outcomes. One way

of doing

this is

to ensure thatContracting

Authorities have in place aCorporate Procurement Strategy that reflects this commitment.Further

ways

to

ensure

this include training

and capacity

building for procurement

and service

delivery

staff.

Local

political

cultures

and elected members are also crucial to making organisational and strategic

provisions for community benefits. Elected members should be strongly involved in developing the

ethos of sustainable social procurement practice and in scrutinising their application and progress. t s

important for politicians to

remember

that procurement

is

not ust a

echnical process,

but

one

which

s

related to a

variety

of policy agendas particularly in relation to the

economy and

environment

.-Buy Soclol. A PfOCIIcol guide to socloiV responsible pu ic procuremenl ( The Sholeglc

nvestment

Boord, 2015)

A rtmer on the use of soctal


23/38

A nmeron the use

f

soctal

cl

a ses m reand

PARTTWO

HOW

TO INCLUDE SOCIAL CLAUSES IN PROCUREMENT

STEP

BY STEP

Step 3:

Create

a B usines s Case

A

business case needs

to be made for including

Social Clauses. t

needs

to show that:

The

requirement

is

appropriate and

meets

a egitimate and reasonable need.

When

designing contracts

it s

important to ask:

what

s

the specific community

need

that

these Social

Clauses

will

meet?

This

avoids the danger

of

a template approach,

where standardised

clauses are

dropped

in to every procurement contract without

reference to the particular

social need

in

that community.

It s essential that resources

are

available

to

set

up a sustainable framework for

supervising the process and to enable the

social requirements to be met

e

.g. here

are

trainees

and

training provisions that can

be engaged), and properly managed

(

i.

e. hrough monitoring facilities).

It

s

important to consider the following:

1.Employing a Community Benefits champion

to project plan from the earliest stage.

Experience

has shown that, particularly for

ma jor projects or or procurers who will

be

using Social

Clauses

in multiple projects,

it s desirable

to

have a

person

or eam

of persons

to plan,

manage and

monitor

a community benefits programme.

2. Getting the local communit y nvolved in

the procurement

process

, by helping

determine what

are

priority community

benefits, or by being involved in the

Pre-Qualification Questionnaire

PQQ)

and the Invitation to Tender(ITI)

assessment

panels

.

3. Clearly define target beneficiaries

e.

g.

tenants;young people; ong-term

unemployed.

4. Identifying resources that could offer

facilitation, advice, and monitoring.

5. Is

there a budget for Community Benefits,

or will the contractor deliver on a cost

neutral* basis?

41

'Cost neutral' means

that

any costs associated with

the

project are absorbed

into the general overheads of he contractor/firm. Client

and

contractors

should aiscuss

how the

contract can be delivered

on

a cost neutr al basis.

j I

.:z

'1'2

:E

-:x

fT

~ ~ /

g

I

The contractor, f here s a cost neutral or'nil cost' requirement, cannot

charge the client for any community benefit.

It

might be argued that a

contractor could just ncrease

the

cost of

he

tender

to fund the community

benefit, however there

s

a risk

that they

could price themselves

out

of

winning the contract. For this to succeed, contractors need to buy nto com

munity benefits and commit to delivering them.Forward-thinking

contractors already accept

that community

benefits are

now

an integral

part

of

procurement in

the

public sector and recognise

the

benefit

to their

company in being able

to

demonstrate their capability

in

delivering

community benefit and their commitment to doing so.

cr

'

0

.=>

m

w

;i:

2 UJ 0

Cl:E ce:_,

t= :::; 0..

' 'll'le Can Oo oaltii'Commun ty beneflls n Procurement ( 2012121)

26

measuring and monitoring.

8.

Engaging

with

contractors far in advance

of

he

procurement process to inform them that Social

Clauses are

to

be in I d

Step 4:0JEU

Contract Notice

The use

of

social considera

ti

ons in con

trac

t

co

nditions

by

a Contracting Au thority must be mentioned in any OJ

EU

Contract Notice. It

s

recommended tha t any community

benefit requirement should be stated in the Notice, even

if i

isnon- r

Ex

ample

of OJEU

Contract No ti ce

Glasgow Housin Association

The successful

economic operator and its supply chain will

be

required to

assist

in t he achievement

of

he contracting

authority's social and environmental objectives.

Accordingly,

economic operators should be

aware

that

contract performance conditions and evaluation criteria

may include social and environmental considerations.

Details will be set out in the contract dpcuments.

Wording from

OJEU

section 111 1 4 Other particular

conditions

Source:Tackling Poverty Through

Public

Procurement

Richard Macfarlane with AnthonyCollins

Solicitors

The

Joseph

Rowntree

Foundation 2014

Case

Study

1

The following model wording is included, ypically

under the section in the

OJEU

Contract Notice headed

Additional n f o r m a t i o n ~

Under this [procurement

I

project] the [contractor/

developer]

Is

required

to

participate actively in the

economic

and social

regeneration

of

he ocality

of and

surrounding the place

of

delivery for he {procurement/

project]. Accordingly contract performance conditions

may relate In particular to

social

and environmental

considerations.

Based

on text n Community

Benefits in

Public

Procurement

The Scottish Government 2008

o

ocr 2 15

LTROATEO F=RO&t _ I

PL

27


24/38

A

nmer on

t

he

use f

sooa clau

s s m

reand

PART TWO

HOW TO INCLUDE SOCIAL

CLAUSES IN

PROCUREMENT

STEP

BY

STEP

llltut ' ' ~

Step 5: Prequallflcation Questionnaire

(PQQ)

A

r ~ Q u a l i f i c a t i o n

Questionnaire

(PQQ) is used

by purchasers

to iden tify suitable suppliers to

invite to tender for contracts.

t

s commonly

used

in procurement and enables the buyer

to shortlist potential providers by obtaining

information regarding technical knowledge

and experience, capability/capacity,

organisational and financial standing.

It s

not

nformation relating to how they

propose to deliver the current contract.

Example

of

a

PQQ

Question on Targeted

recruitment and Training

Please

give

examples of

your nvolvement

n

each

of he ollowing:

generating employment and training

for ong-term unemployed people;

o providing training opportunities;

the developmentof rade

skills

in

your existing workforce;

equal opportunities recruitment

processes.

What

was

your exact involvement n

each of

the

above

activities? Which

of

he

examples

you

cited

have

been most

successful

and which

have been less

successful,and

why?

Ii rce

Community

Benefits

inPublic

I

I -

curemenr.The wttish

Government

B Page

19

5

poge

9

necilo

97. the New

63(21.

the New Duect ve All cles 67(2) ond 70. the 2014 Di1ectve Note thot

both

environmento ond soco flecllol 78.

the

2014

Art cle 56 1) the

2014

D ~ e c t ve

f lee al 75

and ArtiCle

43,

the

2014

Directive, flecllols 97 and

104.

the

2014

Directive

A nmer on the use of sooa

dauses

m r

el

and PART FOUR THE FUTURE FOR SOCIALLY SUSTAINABLE PROCUREMENT

The 2014 Directives contains

these changes related to Social

Considerations:

The actual listing ofHocial

Characteristics

n

the wording

of the Directive as one of the

characteristics that can be

considered as award criteria,

when making a

MEAT

assessment

(environmental characteristics

were already listed

in

the

2004 Directive).

53

Contracting Authorities are

encouraged to divide large

contracts into lots to encourage

the involvement of

SMEs

. 4

Contracting Authorities

may

not

award a contract to th e otherwise

best t ender where that tender

does not comply with cer tain social

and environmental laws.

5

The

2014 Directive codifies th e

Dutch Coffee Case which means

that Contracting Authorities

should not require a tenderer

to hold a particular label, but

should define the technical

specificationsfor thecontract

that they require.

6

Buyers

m y not require tenderers

to have CSR {Corporate Social

responsibility) policies in place

as this

is

not linked with the subject

matter of the contract,

7

following

existing case law.se

The 2014 Directives introduces

the concept of life cycle costing

(LCC).

Article

68 is dedicated

entirely to this new concept.

Article

20 of

Directive2014/24

on Reserved contracts :Member

States may reserve the right to

participate in public procurement

procedures to sheltered workshops

and economic operators whose

main

aim

is

the social and

professional integration of disabled

or

disadvantaged persons. Under

the

old Oirective

60

this possibility

was limited to workshops

employing disabled people, and it

was required tha t at least 50

percent of the employees of those

workshops were disabled.Today,

this figure is 30 percent and has

been extended to include workers

who are socially disadvantaged.

: _

AN BORD PLEANALA

TIME BY

I

.... 0 2 OCT 2015

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