A requirement or preference for contractors to pay workers involved in the delivery of public con... more A requirement or preference for contractors to pay workers involved in the delivery of public contracts a wage above the legal minimum can be seen as part of socially responsible public procurement. However it may also be seen as a restriction on the free movement of goods and services, inasmuch as it erodes the cost advantages of contractors based in lower wage areas. As the United Kingdom prepares to leave the European Union, there is a need both to state EU law on this question and to consider the scope for the UK, its constituent jurisdictions or individual contracting authorities to take a different approach. The 2014 procurement directives, the Bundesdruckerei and RegioPost cases and the Commission's proposed revisions to the Posted Workers Directive all attempt to reconcile free movement with social protections relating to wages - however none of these directly address living wages which are not set out in legislation, collective agreements or administrative provisions. This paper analyses these developments in order to draw conclusions regarding the scope for living wages to be included in public contracts both before and after Brexit.
This paper compares the political question jurisprudence of the United States Supreme Court with ... more This paper compares the political question jurisprudence of the United States Supreme Court with the private applicant standing jurisprudence of the Community Courts under Article 230 (4) EC. It traces the development and eventual abandonment of the political question doctrine from Luther v Borden to Bush v Gore. Underdevelopment of the aspects of the doctrine which come closest to expressing its true purpose as a check on judicial power lead to an overemphasis of its textual commitment and prudential strands, as set out in Baker v Carr. This contributed to the Supreme Court's failure to invoke the doctrine when deciding the outcome of the 2000 presidential election.Turning to the case law of the European Court of Justice and Court of First Instance (Community Courts), I analyse the development of a highly restrictive test for individual standing to challenge regulations and decisions addressed to another. The Courts' decisions in Plaumann, Calpak, UPA and Jego-Quere, in particular, suggest an attempt to grapple with the same 'counter-majoritarian difficulty' which informed the development of the political question doctrine. Given the failure of such tests and doctrines to reliably determine justiciability, I ask if courts would be better off applying selective deference to the other branches in cases brought before them. This approach would allow the substance of a claim to be taken into account explicitly, rather than indirectly as can be observed in the case law analysed here.
Citizen contracting describes public service provision models in which decisions traditionally ta... more Citizen contracting describes public service provision models in which decisions traditionally taken by the State are instead taken by citizens as the recipients of that service. These decisions may relate to the choice of service provider, or to the nature of the service itself. While approaches such as voucher schemes for schools, healthcare, or childcare have been widely debated, this paper focuses on two novel approaches adopted in the UK between 2010 and 2015: the Green Deal for energy-saving home renovations and the Verify system for online identity assurance. These schemes targeted environmental and innovation objectives respectively – and both failed to achieve the intended results. The paper asks how such schemes fit within the broader taxonomy of public service delivery models which involve an element of citizen choice, and how they affect policy objectives currently embedded in public procurement rules, such as transparency and accountability. Drawing lessons from the Green Deal and Verify, it proposes criteria for evaluating citizen contracting models which take account of the full range of desiderata attached to public procurement.
Public infrastructure deficits afflict both developed and developing countries, and are compellin... more Public infrastructure deficits afflict both developed and developing countries, and are compelling governments to bring in private sector capital and management efficiency through arrangements known as public-private partnerships (PPPs). While PPPs have the potential to deliver high-quality public goods and services, they are not a panacea for overextended government budgets, as private partners must ultimately be compensated from the public purse in the long term. This briefing looks towards the third pillar of sustainable development, namely economic sustainability, and non-exhaustively outlines the features that make PPPs financially sustainable, both internally and within the wider economy. The final section briefly considers how PPPs can, in turn, be leveraged to support broader environmental and social sustainability goals. A companion IISD briefing, Public-Private Partnerships Health Check: Managing Partnerships During their Lifetime, examines the scope for public authorities...
A requirement or preference for contractors to pay workers involved in the delivery of public con... more A requirement or preference for contractors to pay workers involved in the delivery of public contracts a wage above the legal minimum can be seen as part of socially responsible public procurement. However it may also be seen as a restriction on the free movement of goods and services, inasmuch as it erodes the cost advantages of contractors based in lower wage areas. As the United Kingdom prepares to leave the European Union, there is a need both to state EU law on this question and to consider the scope for the UK, its constituent jurisdictions or individual contracting authorities to take a different approach. The 2014 procurement directives, the Bundesdruckerei and RegioPost cases and the Commission's proposed revisions to the Posted Workers Directive all attempt to reconcile free movement with social protections relating to wages - however none of these directly address living wages which are not set out in legislation, collective agreements or administrative provisions. This paper analyses these developments in order to draw conclusions regarding the scope for living wages to be included in public contracts both before and after Brexit.
The 2014 EU procurement directives contain a greatly expanded set of provisions relating to socia... more The 2014 EU procurement directives contain a greatly expanded set of provisions relating to socially responsible public procurement (SRPP). From the application of higher thresholds and ability to limit competition for certain contracts through to the use of social award criteria and contract performance clauses, there are numerous possibilities for contracting authorities to take considerations related to labour law compliance, trading conditions and social inclusion into account. At the same time, the EU has expanded its international commitments in the field of public procurement through the revision of the WTO Government Procurement Agreement (GPA), the Comprehensive Economic and Trade Agreement (CETA) with Canada, and through the establishment of Deep and Comprehensive Free Trade Areas (DCFTAs) with Ukraine, Moldova and Georgia. This paper looks at the extent to which SRPP provisions have been incorporated in these agreements, finding that in a number of areas such as reservation of contracts for disabled and disadvantaged workers, treatment of abnormally low tenders and use of third party certifications, they offer a less supportive framework than the EU directives for SRPP.
Originating in a dictum of the Court of Justice in the Concordia Bus Finland case, the 'link to t... more Originating in a dictum of the Court of Justice in the Concordia Bus Finland case, the 'link to the subject-matter' has emerged as a major limiting principle for sustainability considerations in the 2014 EU procurement directives. It is intended to delimit the scope of legitimate requirements or preferences which can be expressed in procurement procedures and applied in contract performance clauses. It effectively removes the ability to interrogate general corporate social or environmental responsibility policies to the extent that these address matters beyond the specific needs of the contracting authority. This paper analyses the origin and application of the concept in the Court's case law and the manner in which it has been expanded in the 2014 directives. As cases applying the test are few, additional sources such as interpretative efforts of the European Commission and the preparatory materials for the 2014 directives are drawn upon for better understanding of its scope.
The paper then turns to an analysis of how the link to the subject-matter may restrict the effectiveness of sustainability criteria in public contracts, drawing on examples related to renewable energy generation, transport emissions and fair trade products. application of a strict version of the test may create difficulties in achieving the objectives of such criteria, due to the complexity of supply chains and the prevalence of 'upstream' environmental and social impacts. On the other hand, abandoning or loosening the link may also pose problems in terms of verification of criteria and the additionality of the benefits they target. Concerns about the covert use of procurement as a means of regulation are considered, but found to be lacking in substance. The paper concludes by proposing a loose link to the subject-matter test combined with application of the principles of proportionality and transparency as an appropriate way for the Court to review sustainability measures in public procurement.
A requirement or preference for contractors to pay workers involved in the delivery of public con... more A requirement or preference for contractors to pay workers involved in the delivery of public contracts a wage above the legal minimum can be seen as part of socially responsible public procurement. However it may also be seen as a restriction on the free movement of goods and services, inasmuch as it erodes the cost advantages of contractors based in lower wage areas. As the United Kingdom prepares to leave the European Union, there is a need both to state EU law on this question and to consider the scope for the UK, its constituent jurisdictions or individual contracting authorities to take a different approach. The 2014 procurement directives, the Bundesdruckerei and RegioPost cases and the Commission's proposed revisions to the Posted Workers Directive all attempt to reconcile free movement with social protections relating to wages - however none of these directly address living wages which are not set out in legislation, collective agreements or administrative provisions. This paper analyses these developments in order to draw conclusions regarding the scope for living wages to be included in public contracts both before and after Brexit.
This paper compares the political question jurisprudence of the United States Supreme Court with ... more This paper compares the political question jurisprudence of the United States Supreme Court with the private applicant standing jurisprudence of the Community Courts under Article 230 (4) EC. It traces the development and eventual abandonment of the political question doctrine from Luther v Borden to Bush v Gore. Underdevelopment of the aspects of the doctrine which come closest to expressing its true purpose as a check on judicial power lead to an overemphasis of its textual commitment and prudential strands, as set out in Baker v Carr. This contributed to the Supreme Court's failure to invoke the doctrine when deciding the outcome of the 2000 presidential election.Turning to the case law of the European Court of Justice and Court of First Instance (Community Courts), I analyse the development of a highly restrictive test for individual standing to challenge regulations and decisions addressed to another. The Courts' decisions in Plaumann, Calpak, UPA and Jego-Quere, in particular, suggest an attempt to grapple with the same 'counter-majoritarian difficulty' which informed the development of the political question doctrine. Given the failure of such tests and doctrines to reliably determine justiciability, I ask if courts would be better off applying selective deference to the other branches in cases brought before them. This approach would allow the substance of a claim to be taken into account explicitly, rather than indirectly as can be observed in the case law analysed here.
Citizen contracting describes public service provision models in which decisions traditionally ta... more Citizen contracting describes public service provision models in which decisions traditionally taken by the State are instead taken by citizens as the recipients of that service. These decisions may relate to the choice of service provider, or to the nature of the service itself. While approaches such as voucher schemes for schools, healthcare, or childcare have been widely debated, this paper focuses on two novel approaches adopted in the UK between 2010 and 2015: the Green Deal for energy-saving home renovations and the Verify system for online identity assurance. These schemes targeted environmental and innovation objectives respectively – and both failed to achieve the intended results. The paper asks how such schemes fit within the broader taxonomy of public service delivery models which involve an element of citizen choice, and how they affect policy objectives currently embedded in public procurement rules, such as transparency and accountability. Drawing lessons from the Green Deal and Verify, it proposes criteria for evaluating citizen contracting models which take account of the full range of desiderata attached to public procurement.
Public infrastructure deficits afflict both developed and developing countries, and are compellin... more Public infrastructure deficits afflict both developed and developing countries, and are compelling governments to bring in private sector capital and management efficiency through arrangements known as public-private partnerships (PPPs). While PPPs have the potential to deliver high-quality public goods and services, they are not a panacea for overextended government budgets, as private partners must ultimately be compensated from the public purse in the long term. This briefing looks towards the third pillar of sustainable development, namely economic sustainability, and non-exhaustively outlines the features that make PPPs financially sustainable, both internally and within the wider economy. The final section briefly considers how PPPs can, in turn, be leveraged to support broader environmental and social sustainability goals. A companion IISD briefing, Public-Private Partnerships Health Check: Managing Partnerships During their Lifetime, examines the scope for public authorities...
A requirement or preference for contractors to pay workers involved in the delivery of public con... more A requirement or preference for contractors to pay workers involved in the delivery of public contracts a wage above the legal minimum can be seen as part of socially responsible public procurement. However it may also be seen as a restriction on the free movement of goods and services, inasmuch as it erodes the cost advantages of contractors based in lower wage areas. As the United Kingdom prepares to leave the European Union, there is a need both to state EU law on this question and to consider the scope for the UK, its constituent jurisdictions or individual contracting authorities to take a different approach. The 2014 procurement directives, the Bundesdruckerei and RegioPost cases and the Commission's proposed revisions to the Posted Workers Directive all attempt to reconcile free movement with social protections relating to wages - however none of these directly address living wages which are not set out in legislation, collective agreements or administrative provisions. This paper analyses these developments in order to draw conclusions regarding the scope for living wages to be included in public contracts both before and after Brexit.
The 2014 EU procurement directives contain a greatly expanded set of provisions relating to socia... more The 2014 EU procurement directives contain a greatly expanded set of provisions relating to socially responsible public procurement (SRPP). From the application of higher thresholds and ability to limit competition for certain contracts through to the use of social award criteria and contract performance clauses, there are numerous possibilities for contracting authorities to take considerations related to labour law compliance, trading conditions and social inclusion into account. At the same time, the EU has expanded its international commitments in the field of public procurement through the revision of the WTO Government Procurement Agreement (GPA), the Comprehensive Economic and Trade Agreement (CETA) with Canada, and through the establishment of Deep and Comprehensive Free Trade Areas (DCFTAs) with Ukraine, Moldova and Georgia. This paper looks at the extent to which SRPP provisions have been incorporated in these agreements, finding that in a number of areas such as reservation of contracts for disabled and disadvantaged workers, treatment of abnormally low tenders and use of third party certifications, they offer a less supportive framework than the EU directives for SRPP.
Originating in a dictum of the Court of Justice in the Concordia Bus Finland case, the 'link to t... more Originating in a dictum of the Court of Justice in the Concordia Bus Finland case, the 'link to the subject-matter' has emerged as a major limiting principle for sustainability considerations in the 2014 EU procurement directives. It is intended to delimit the scope of legitimate requirements or preferences which can be expressed in procurement procedures and applied in contract performance clauses. It effectively removes the ability to interrogate general corporate social or environmental responsibility policies to the extent that these address matters beyond the specific needs of the contracting authority. This paper analyses the origin and application of the concept in the Court's case law and the manner in which it has been expanded in the 2014 directives. As cases applying the test are few, additional sources such as interpretative efforts of the European Commission and the preparatory materials for the 2014 directives are drawn upon for better understanding of its scope.
The paper then turns to an analysis of how the link to the subject-matter may restrict the effectiveness of sustainability criteria in public contracts, drawing on examples related to renewable energy generation, transport emissions and fair trade products. application of a strict version of the test may create difficulties in achieving the objectives of such criteria, due to the complexity of supply chains and the prevalence of 'upstream' environmental and social impacts. On the other hand, abandoning or loosening the link may also pose problems in terms of verification of criteria and the additionality of the benefits they target. Concerns about the covert use of procurement as a means of regulation are considered, but found to be lacking in substance. The paper concludes by proposing a loose link to the subject-matter test combined with application of the principles of proportionality and transparency as an appropriate way for the Court to review sustainability measures in public procurement.
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The paper then turns to an analysis of how the link to the subject-matter may restrict the effectiveness of sustainability criteria in public contracts, drawing on examples related to renewable energy generation, transport emissions and fair trade products. application of a strict version of the test may create difficulties in achieving the objectives of such criteria, due to the complexity of supply chains and the prevalence of 'upstream' environmental and social impacts. On the other hand, abandoning or loosening the link may also pose problems in terms of verification of criteria and the additionality of the benefits they target. Concerns about the covert use of procurement as a means of regulation are considered, but found to be lacking in substance. The paper concludes by proposing a loose link to the subject-matter test combined with application of the principles of proportionality and transparency as an appropriate way for the Court to review sustainability measures in public procurement.
The paper then turns to an analysis of how the link to the subject-matter may restrict the effectiveness of sustainability criteria in public contracts, drawing on examples related to renewable energy generation, transport emissions and fair trade products. application of a strict version of the test may create difficulties in achieving the objectives of such criteria, due to the complexity of supply chains and the prevalence of 'upstream' environmental and social impacts. On the other hand, abandoning or loosening the link may also pose problems in terms of verification of criteria and the additionality of the benefits they target. Concerns about the covert use of procurement as a means of regulation are considered, but found to be lacking in substance. The paper concludes by proposing a loose link to the subject-matter test combined with application of the principles of proportionality and transparency as an appropriate way for the Court to review sustainability measures in public procurement.