Beyond Competition and Value for Money: Corporate Social Responsibility in Public Procurement
Prof. Martin Trybus
Professor of European Law and Policy
Director of the Institute of European Law
University of Birmingham – UK
Abstract:
The State needs to buy from the private sector and procurement law regulates this process. Many experts think, that public procurement should aim for more than just value for money, that the procurement function is a powerful instrument in the hands of the State that should be used for the ‘greater good’. The ‘greater good’ are labour related objectives, such as a minimum wage or health and safety at the workplace, environmental objectives, such as energy efficiency or simply using environmentally friendly material, or fair trade and human rights. In the context of public procurement where the focus is on the State as a contracting authority, these objectives can be called secondary objectives, horizontal objectives, or sustainable procurement. In the context of corporate social responsibility (CSR), the focus is on the private economic operators who are bidding for government contracts. Sustainability objectives are pursued by the State through public procurement to change the behaviour of the economic operators they are doing business with. Thus, we have a public and a private side of the same sustainability coin. As the objective is to change society for the better through public procurement, the changed behaviour should actually not be limited to the economic operator’s corporate social responsibility in the context of the awarded contract but to all their other business as well. Moreover, there is the intention to even change the behaviour of companies that do not even do business with the government by creating good corporate social responsibility examples in the business community. This paper argues that horizontal objectives should be promoted through public procurement. However, a balance must be struck with the other objectives – especially with value for money. This is best done early, in the technical specifications or definition of requirements, where appropriate through qualification, and to a more limited extent as an award criterion. This makes procurement laws more complex and this must be accepted. Most importantly though, is control and enforcement. Otherwise competition will be distorted by economic operators who make empty promises and win over more honest and quite possibly better offers.
Keywords: Public procurement law, Corporate Social Responsibility, sustainability, value for money, link to the subject matter of the public contract.