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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
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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
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
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
X'lll17 i
1 7 ~
LnColl
L ii1hrc m Grca,:iin \\ w.plc:mala
ic
\\ ch
Rinmhph
-
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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
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.
Enclosed for your infonnation are two copies of submissions received by the Board in relation to the above mentioned
proposed development.
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
G l : ~ ~
\i i
I X J I 2 7 ~ 1 7 ~ LnC'.11l
L..tnhn:m
GrCa,iilll ' w plc.mala c: \\'ch
Riumhphmt hurd'
plcun.&l.t tc
I
mail
I I larllmruugh Stn d
Ouhlin I
-
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4/38
Our Ref: 29N.PA0043
P.A.Reg.Ref:
Your
Ref:
Chief Executive Officer
Fingal County Council
County Hall
Main Street
Swords
County Dublin
5th October 2015
Dear Sir/Madam,
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.
Enclosed for your information are two copies of submissions received by the Board
in
relation to the above mentioned
proposed development.
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
L iothrc;on
Grea,:illl rlcanala
IC
\\ch
Rimnhph 'l
hort l
plcanala ic
Lmali
1 1 ~ l a r l l ' ' ~ h
Street
Duhlm I
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Our Ref:
29N.PA0043
P A Reg Rcf:
Your Ref:
Chief Executive Officer
South Dublin County Council
County Hall
Tallaght
Dublin 24
5th October
2015
Dear Sir/Madam,
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.
n Bord Pleanala
Enclosed for your infonnation are two copies of submissions received by the Board in relation to the above mentioned
proposed development.
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
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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
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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
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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 _
Pl
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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
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I
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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
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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
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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,
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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
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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).
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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
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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
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19/38
A rm eon
he
use
or ocial clauses in
Ireland
PARTONE- SOCIAL CLAUSES THEIR LEGALITY IN
THE
EU AND IRELAND
~ 1 ~ 1
:3
c r
z
c r
W >
-leD
a
I
c
a:
0
m
Z w
18
:E
c::;)
0
( I
a::
u.
1- -
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
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~
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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
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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
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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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:he :.utch Coffee Case Under Directve 2114, 2A Article
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120)
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