DRIVING CHANGE
THROUGH PUBLIC
PROCUREMENTA TOOLKIT ON HUMAN RIGHTS FORPROCUREMENT POLICY MAKERS AND
PRACTITIONERSMARCH 2020

The objective of this Toolkit is to enable public procurement policy makers, buyers
and contract managers to implement requirements to promote respect for humanrights by their suppliers.
The public procurement cycle consists of procurement planning, the procurement
process, and contract management.1 This Toolkit will highlight how requirementsthat suppliers respect human rights can be incorporated across different stagesof the procurement cycle. The scope of goods and services bought by publicauthorities ranges widely, from large-scale infrastructure and urban development
projects, to the acquisition of complex items such as weapon systems, tocommissioning of essential public services in the health and social care sector, andto buying common goods such as stationery, furniture, and foodstuffs. This Toolkit
will highlight how human rights requirements can be integrated into the majority ofprocurement exercises.
Given variation across national public procurement regimes, this Toolkit outlines a
general approach intended to be relevant to different legal and market contexts.
However, national laws and policies relating to public procurement may limit thedirect applicability of some of the approaches outlined in this Toolkit or, on theother hand, may demand more stringent requirements. Therefore, the suggestions
outlined in this Toolkit should be adapted by users to ensure their alignment withnational laws and policies. In addition, adaption to the local context should be
informed by an assessment of current levels of knowledge, capacity and budget
within the procurement function.
This Toolkit does not highlight human rights abuses in public value chains or survey
gaps in procurement systems.2
For most public buyers, responsibility for setting procurement policy, for buying,and for contract management reside with different teams and individuals. To be
relevant to readers with different roles and responsibilities, this Toolkit is structured
as follows:
A – Introduction
B – Guidance for procurement policy makers
C – Guidance for procurement practitioners
Sections B and C can be read independently of each other. It may however be
useful, where time allows, to read the full Toolkit, to understand the responsibilities
and roles of other actors involved in the procurement process, as regards humanrights.

© Max Larochelle, Unsplash

DRIVING CHANGE THROUGH PUBLIC PROCUREMENT
A toolkit on human rights for procurement policy makers and practitioners
March 2020
Author: Daniel Morris
Reviewers: Claire Methven O’Brien, Elin Wrzoncki and Cathrine Bloch Veiberg
Acknowledgements: This Toolkit draws from reports by the International Learning Lab on
Public Procurement and Human Rights.3 We would also like to acknowledge the input ofVinge (Sweden) and the contribution of this Toolkit’s Expert Review Group listed below.
Individual
Andy Davies
Björn Claeson
Elena Mora
Kaori Kuroda
Kevin Funk
Marcus McKay
Nikki Archer and Lorraine Hook
Olga Martin-Ortega
Pauline Göthberg
Radu Cucos
Stine Foss
Théo Jaekel
Thomas Trier Hansen

Institution
The Natural History Museum (UK)Electronics Watch (Sweden)
ChileCompra (Chile)
CSO Network Japan (Japan)
United States General Services Administration (USA)
United Nations Office for Project Services
Scottish Government (UK)
University of Greenwich (UK)
Nationella Kansliet Hållbar Upphandling (Sweden)
Organization for Security and Co-operation in Europe
ETI Norway (Norway)
Ericsson (Sweden)
Law firm Trier Law ApS (Denmark)

We would also like to thank those who provided comments on the road-testing version.
ISBN: 978-87-93893-32-0, e-ISBN: 978-87-93893-31-3
Layout: Hedda Bank, Infographics: Semin Alekic,
Frontpage photo: Nuno Silva, Unsplash, Backpage photo: Ryoji Iwata© 2020 The Danish Institute for Human Rights
Denmark’s National Human Rights Institution · Wilders Plads 8K, DK-1403 Copenhagen K
Phone +45 3269 8888 · www.humanrights.dk
Provided such reproduction is for non-commercial use, this publication, or parts of it, may
be reproduced if author and source are quoted.
At the Danish Institute for Human Rights we aim to make our publications as accessible
as possible. We use large font size, short (hyphen-free) lines, left-aligned text and strong
contrast for maximum legibility. For further information about accessibility please click
www.humanrights.dk/accessibility
This Toolkit was financed by Danida and Sida. Responsibility for the content rests entirely
with the Danish Institute for Human Right.

CONTENTSA
BC�INTRODUCTION
A1. The reason to act
A2. Human rights and public procurement
A3. How to act – first steps

6
10
11
17

GUIDANCE FOR PROCUREMENT POLICY MAKERS
20
B1. Legal and policy procurement frameworks and human rights 21
B2. Human rights as a policy objective
34
B3. System-wide planning
41

GUIDANCE FOR PROCUREMENT PRACTITIONERS
C1. Pre-tender planning
C2. The procurement process - Pre-award measures
C3. The procurement process - Post-award measures
C4. Contract Management

63
64
75
86
96

GLOSSARY
NOTES

110
114

THESE BOXES HIGHLIGHT IMPORTANT POINTSTHESE BOXES PROVIDE EXAMPLESTHESE BOXES HIGHLIGHT FIRST STEPSAIn recent years, public procurement has increasingly been recognised as a means
for states to fulfil their human rights obligations and to realise sustainable
development. Including requirements within public procurements that suppliers
respect human rights can help prevent human rights abuses – including modern
slavery, child labour, human trafficking, excessive working hours, and unsafe
working conditions – from occurring within value chains. Such requirements arealso a crucial part of human rights protection where public services are contracted
out for private service delivery, for instance, in the health, education and criminal
justice spheres. Finally, with the increasing digitalisation of states and emergenceof artificial intelligence, human rights need to be integrated into the design anddelivery of IT procurements.

�

WHAT ARE VALUE CHAINS?
A value chain encompasses all the activities and materials that go
into goods or services. It covers the production of raw materials,
manufacturing stages, transport, delivery, and end-of-life disposal. It
also includes the activities of suppliers and sub-contractors.

© ILO Asia-Pacific

INTRODUCTIONINTRODUCTION

6DRIVING CHANGE THROUGH PUBLIC PROCUREMENT

HARM TO INDIVIDUALS THROUGH HUMAN RIGHTS ABUSES IN STATEVALUE CHAINS
In Australia, G4S was contracted to provided security services to the Manus
Regional Processing Centre, one of Australia’s offshore detention facilities forrefugees and asylum seekers. In 2014, G4S staff were involved in violence at
the Centre which saw one person killed and 77 injured. A G4S security guard
was later convicted of murder.4 The incident was also the subject of a classaction which resulted in Australia’s largest human rights settlement and thedefendants, including the Australian state and G4S, were forced to pay AUS$70m
in compensation.5 In 2018, staff at the facility began legal action claiming they
suffered physical and psychological harm during riots and that the contractor andthe Australian government did not provide a safe workplace and failed in their dutyof care.6 Subsequently, the Australian Government has found it difficult to secure
reputable service providers for Regional Processing Centres. The latest provider,
Paladin, was awarded a AUS$423m contract through a closed tender process. In
2019, the head of the Department of Home Affairs was forced to deny allegations
that the contract was awarded to Paladin because they were “desperate”, although
they conceded that the award took place against an “urgent” set of circumstances.
It was conceded that Paladin was approached because businesses were notinterested in tendering because there was “too much noise around regional
processing”.7
In January 2016, a documentary aired on national TV in the UK showing staff at
a secure training centre using excessive force to restrain children. The staff were
employed by the security company G4S which ran the centre under contract tothe UK.8 Investigations by the NGO Danwatch in 2015 showed that the Chinese
manufacturers of servers for brands such as HP, Dell, and Lenovo, relied on theforced labour of students. The students were required by their schools to work
up to 12 hours a day on production lines without pay on so-called ‘traineeships’
in order to graduate and receive their diplomas – in unrelated disciplines, suchas nursery school teaching and accounting. The Danwatch report highlighted
that the servers produced with students’ forced labour were purchased by higher
education institutions in Europe.9
In 2017 North Korean slave labour was reported in the construction of Danish
warship Lauge Koch, with workers reportedly seeing their wages withheld and theirfreedom of movement limited.10 Since 2018, European health services have stood
accused of purchasing rubber gloves and condoms produced through forced
labour in Malaysia, with reports of workers facing recruitment fees, excessive
overtime, passport confiscation, poor accommodation, and withheld wages.11

7

DRIVING CHANGE THROUGH PUBLIC PROCUREMENTINTRODUCTION

In addition to preventing human rights abuses from occurring within value chain,public procurements can also promote the rights of vulnerable and at-risks groups
by favouring them, or businesses which support them, in public procurement
exercises.

Public procurement is used to protect against, for example:- Forced labour (USA)- Modern slavery (UK)
- Child labour (Sweden)

Public procurement is used, for example:- To support the rehabilitation of persons convicted of criminal
offences (Uruguay);- To support vulnerable food producers (Brazil);- To give employment to people who have been out of thelabour market for a long time (Sweden);- To address the economic effects of theapartheid (South Africa);- To support the participation of women (Chile), persons withdisabilities in business (Colombia), indigenous peoples inbusiness (Canada), and veterans in business (USA).

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DRIVING CHANGE THROUGH PUBLIC PROCUREMENT

Public procurement is a substantial component of the overall economy and gives
states a significant opportunity to influence global value chains. Public buying is amechanism through which states can encourage and influence sustainablebusiness practice by the private sector (see Section B3.1 Increasing leverage).13
Indeed, businesses already see human rights requirements from public buyers as astrong reason to adopt measures to respect human rights.14 As mega-consumers,
states have the purchasing power to set standards that can shift markets towards
more humane norms of practice and competition, and to secure the accountabilityof suppliers responsible for human rights abuses, as well as remedy for victims.15

States are ”the largest consumers in the global marketplace through theacquisition of goods, services and works to carry out their functions and todeliver services to citizens.”

15-20%

Public procurement accounts for 15-20% of global gross domestic product (GDP)across Organisation for Economic Co-operation and Development States.

GDP¤1.3T World Trade Organisation General Procurement Agreements commitments
represent around €1.3 trillion in business opportunities worldwide.

¤2T

Public contracts account for 12% of GDP on average.

12%

GDP
In 2016 globally public procurement contracts were estimated to total €2 trillion.
16
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DRIVING CHANGE THROUGH PUBLIC PROCUREMENT

A1. THE REASON TO ACTThere are several reasons to include requirements within public procurement that
suppliers respect human rights.

INTRODUCTIONFULFILLING LEGAL OBLIGATIONSThe state has a legal obligation to protect human rights, which includes the humanrights of individuals in the value chains of businesses supplying goods and services
to the state, who are in its territory/ jurisdiction.17 In addition, the state should
support suppliers in meeting the business responsibility to respect human rights.
Introducing requirements within public procurement that suppliers respect humanrights is increasingly being recognised as a means of meeting these obligations.18
RISK MANAGEMENT

The primary risk that public buyers must address is that public procurement islinked to serious harm to individuals. However, there are other risks that publicbuyers and suppliers must consider, including legal risks (incurring liability forhuman rights abuses, for example), financial risks (costs associated with delays
in contract delivery, re-running procurement exercises or remediating harms tovictims, for example) and reputational risks. If addressed effectively, some suchrisks may become opportunities. For instance, a supplier that takes effective
steps to respect the human rights of workers may be viewed, and evaluated, morefavourably by procurers and investors. Reputation also has value for public buyer;
association with human rights abuses may deter potential employees or undermine
the credibility of policy commitments to uphold human rights in other areas.
LEADING BY EXAMPLE

If public buyers implement requirements that suppliers respect human rights thiswill encourage the corporate sector towards the same aim. Such requirements
can be applied to first tier suppliers and then cascaded through the value chain to
sub-contractors at home and abroad. They also provide a mechanism for states
to enforce existing laws, for example, in the areas of labour standards, humantrafficking and child protection. In addition, they can support public policies in areas
such as promoting inclusive labour market development.
CREATING A LEVEL PLAYING FIELD IN THE CORPORATE SECTOR

If public buyers require suppliers to respect human rights when providing the statewith goods and services, this helps to create a level playing field for suppliers thatstrive to respect human rights. Businesses that abuse human rights, for example,
by employing children to perform hazardous tasks, taking workers’ passports away,
or making excessive deductions from their wages, may gain an unfair competitive
advantage over businesses which respect human rights. Some businesses are
moving ahead with measures to respect human rights. Yet when these efforts are
not recognised or valued in public procurement exercises, it may discourage suchbusinesses from sustaining responsible business practices. It may also deter otherbusinesses from addressing human rights risks or abuses. State buying practices
should ensure that all suppliers play by the same rules and that public procurement
promotes a ‘race to the top’ business environment.
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DRIVING CHANGE THROUGH PUBLIC PROCUREMENT

A2. HUMAN RIGHTS AND PUBLIC PROCUREMENT
Human rights are rights inherent to all human beings. They are universal legal
guarantees protecting individuals and groups against actions which interfere with
fundamental freedoms and human dignity. Human rights are:
• Applicable to all human beings;• Equally valuable, meaning that there is no hierarchy between different humanrights;• Universal, meaning that they should be enjoyed by everyone equally, irrespectiveof race, sex, ethnic origin, religion, age or other protected status.
Human rights are set out in international and regional treaties and declarations.19
There are nine ‘core’ human rights treaties which articulate states’ human rights
obligations, including:• The Universal Declaration of Human Rights;• The International Covenant on Civil and Political Rights;• The International Covenant on Economic, Social and Cultural Rights.
The remaining ‘core’ human rights treaties further elaborate on rights of specificgroups including women, children, persons with disabilities and migrant workers
and expand on the prohibition of racial discrimination, torture and enforced
disappearances.
In addition, the eight fundamental conventions, or ‘core labour standards’ of theInternational Labour Organization (ILO) are recognised as protecting human rights:
freedom from discrimination in the workplace, freedom from child labour, freedomof association and collective bargaining, and freedom from forced labour. These aresupplemented by many other important ILO standards in areas such as health andsafety at work, wages and social protections.
Public procurement refers to the process by which public authorities, such as
government departments/ ministries, local or municipal authorities, and stateowned enterprises, purchase work, goods or services from businesses.20 The public
procurement cycle usually consists of procurement planning, the procurement
process and contract management.21 The scope of goods and services boughtby public authorities ranges widely, from large-scale infrastructure and urban
development projects, to the acquisition of complex items such as weapon
systems, to commissioning of essential public services in the health and social caresector, and to buying common goods such as stationery, furniture, and foodstuffs.

11

DRIVING CHANGE THROUGH PUBLIC PROCUREMENTINTRODUCTION�

A state’s human rights obligations are applicable to all public bodies
procuring goods and services, from government departments tolocal councils, from central and local procurement agencies topublic hospitals and libraries. International standards set a minimum
benchmark and states can go beyond these and implement increased
human rights protections of their own design.

In 2013 the Northern Ireland Human Rights Commission publisheda report which spells out the state’s human rights obligations related
to public procurement. In 2018 the Northern Ireland Departmentof Finance developed a procurement guidance note which explains
how and why human rights will be included within their procurement
activities in practice, observing that:“Failure to respect an individual’s human rights conflicts withinternational standards and domestic law. Public authorities when
discharging their duties are explicitly tasked with respecting, protecting
and promoting human rights, including during the public procurement
process. … A human rights based approach to public procurement canbe used to both prevent human rights violations and abuses and to takean active role in respecting, protecting, and fulfilling human rights.”

Amongst the human rights risks that have been addressed in the procurement
process through legislation or policy are:
• Child labour;• Discrimination and unequal treatment;• Excessive working hours and low wages;• Freedom of association (for example, joining unions);• Human trafficking;• Unsafe working conditions (see Section C1.1 Human rights risk identification andassessment for examples of what this can include).

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DRIVING CHANGE THROUGH PUBLIC PROCUREMENT

In September 2018, the United Kingdom (UK) along with Australia,
Canada, New Zealand and the United States of America (USA),
adopted four Principles to Guide Government Action to Combat
Human Trafficking in Global Supply Chains. The first principle statesthat “Governments should take steps to prevent and address humantrafficking in government procurement practices”. Governments should“provide tools and incentives and adopt risk assessment policies andprocedures that require their procurement officers and contractors toassess the nature and extent of potential exposure to human trafficking
in their supply chains”.

Measures in public procurements have also been used to promote the rights orsituation of:• Persons with disabilities;• Women and children;• Persons convicted of criminal offences;• Veterans;• Economically disadvantaged minorities;• Migrant workers;• Persons living in conflict zones.

In Chile, the 2003 public procurement law and Directive 17 of 2014
allow for procurement processes to favour persons with disabilities,
unemployed youth and indigenous peoples. Directive 17 states:“12.9% of the Chilean population has some type of disability. Within
this group, 50% are of working age and only 29% of them perform
any activity of this type. If the fact that 2 out of 5 people live in a low
socioeconomic condition is added to this, there is a need to introduce
concepts, criteria and guidelines that encourage the inclusion of thesegroups, through public procurement.”
ChileCompra, the central procurement body in Chile, has adopted a
programme to promote the participation of businesses led by womenin the public procurement market to contribute to gender equality andaddress the structural disadvantages faced by women in the labour
market in Chile.

13

DRIVING CHANGE THROUGH PUBLIC PROCUREMENTIn Mexico, the Law on Acquisitions, Leases and Services of the Public
Sector of 2014 provides in Article 14:

INTRODUCTION“…In the case of public tender for the acquisition of goods, leases orservices which use the evaluation of points and percentages, points
will be awarded under the terms of this Law, to persons with disabilities
or to the company that has workers with disabilities in a proportion offive percent at least of all of its employees, whose seniority is not lessthan six months, which will be verified with the notice of discharge
to the mandatory regime of the Mexican Social Security Institute…
Similarly, points will be awarded to companies that have applied genderequality policies and practices, in accordance with the corresponding
certification issued by the authorities and bodies empowered to do so.”Requirements have also been used to contribute to the progressive realisation of
the human right to adequate food through the public catering sector, including
school meal programmes.22

Brazil’s Act No. 11.947 of 16 June 2009 provides that a minimum of
30% of the financial resources transferred by the federal government
to states and municipalities in order to implement the National School
Feeding Programme (PNAE), now covering more than 49 million
children, must be used to buy food sourced from family-based farms,
including indigenous communities, Quilombolas (descendants of AfroBrazilian slaves), and beneficiaries of land redistribution programmes.23

RISKS TO HUMAN RIGHTS OF END-USERS AND SERVICE-USERS
Goods and services provided to individuals should not harm their humanrights. This is relevant when suppliers deliver essential public services, such as
personalised health or social care services for persons with disabilities or special
needs. It is also relevant where goods are supplied directly to end-users, such as
drugs and mobility devices including wheelchairs.
The state can contract out the supply of goods and services, but it cannot contract
out its human rights obligations. The public buyer should therefore take steps tomanage the risk of harm to individuals through human rights due diligence (seeSection B3.2 Risk management) and consult with service-users and end-users as
relevant stakeholders (See B3.6 Engaging stakeholders).

14© Greg Walters

DRIVING CHANGE THROUGH PUBLIC PROCUREMENTThe UN Guiding Principles on Business and Human Rights (UNGPs) affirm thestate’s duty to protect against business-related human rights abuses, along with theduty to remediate such abuses effectively should they occur. The UNGPs also clarify
that all businesses have a responsibility to respect human rights, including in their
supply chain relationships.24 The UNGPs were endorsed by the UN Human Rights
Council in June 2011 and are the first widely accepted international framework
articulating the respective duties and responsibilities of states and businesses
in relation to human rights. The UNGPs draw their authority from pre-existing
international human rights laws. Moreover, the UNGPs explicitly affirm that thestate duty to protect against human rights abuses extends to public procurement.25
Currently, businesses are not considered to have direct legal obligations underinternational human rights law. Instead businesses have a ‘responsibility to respect’human rights, that is, to ‘do no harm’.26 According to the UNGPs:“The responsibility of business enterprises to respect human rights applies to allenterprises regardless of their size, sector, operational context, ownership andstructure. Nevertheless, the scale and complexity of the means through which
enterprises meet that responsibility may vary according to these factors and withthe severity of the enterprise’s adverse human rights impacts.”
Businesses should take active steps to avoid negatively impacting on humanrights through a process called human rights due diligence (see B1.1 Human rights
instruments and Section B3.2 Risk management).27

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DRIVING CHANGE THROUGH PUBLIC PROCUREMENTINTRODUCTION

Human Rights & Public Procurement

STATE
Human rights
due diligenceState duty
to protect
human rights

END-USER

SUPPLIER?

SUB-SUPPLIERS?

WORKERSCOMMUNITIESVALUE CHAIN? ?

POTENTIALLY
IMPACTEDPEOPLE?
Corporate responsibility
to respect human rights

BUSINESS* End of life disposal of goods is not addressed in this Toolkit

16

RIGHTS-HOLDERS

DRIVING CHANGE THROUGH PUBLIC PROCUREMENT© CDC, Unsplash

A3. HOW TO ACT – FIRST STEPSThis section highlights potential first steps for procurement law and policy-makers
and for procurement practitioners towards implementing requirements that
suppliers respect human rights. Information on additional first steps is included in
Section B and C, alongside guidance on further measures for procurers with moreestablished human rights risk management programmes.

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DRIVING CHANGE THROUGH PUBLIC PROCUREMENTFIRST STEPS FORPROCUREMENT POLICY MAKERS
Identify relevant national laws, policies and guidance relating to public procurement,sustainability, and human rights to see what human rights requirements are allowed
and/ or required.
Section B1. Legal and policy procurement frameworks and human rights

Identify current public procurement policy objectives and explore how human rights
are, or could be, incorporated within these.
INTRODUCTION

Section B2. Human rights as a policy objective

Investigate whether there are existing framework agreements and purchasing
consortia that have started to address human rights issues that you can use or join.
Section B3.1 Increasing leverage

Learn about human rights due diligence as described by the UN Guiding Principles on
Business and Human Rights and take steps to implement it within existing procurement
systems.
Section B3.2 Risk management

Establish a human rights working group with members from the different teams anddepartments working across the procurement cycle to design an approach tailored to
the local environment;
Seek political, management and team buy-in to facilitate work with human rights
requirements;
Mobilise existing induction, training, management, evaluation and budget systems tobuild competence in human rights due diligence.
Section B3.3 Ensuring coherence in implementation

Begin with pilot projects to build knowledge and capacity gradually, spot challenges,
capture learnings and generate team confidence before a wider roll-out;
Develop internal policies with guidance and training to provide clarity and help manage
expectations on what can be achieved and what is required of staff, accompanied with training
and capacity building;Gather good practices and lessons learned and make them accessible across teams;
Talk to other public buyers and adapt successful elements of approaches from elsewhere.
Section B3.4 Supporting procurement personnel

Use the market testing stage to identify how knowledgeable suppliers are about humanrights risks, what measures they currently apply, and how they would respond to new
requirements;
Provide user-friendly guidance and training for suppliers and potential suppliers withpractical examples of how to address human rights risks.
Section 3.5 Supporting suppliers and market dialogue

In addition to market testing for suppliers, consider ways to get feedback from other relevant
stakeholders, such as supplier associations, workers, worker organisations, civil society actors,
end-users/ service-users, as well as communities which have been impacted, or are
potentially impacted by human rights abuses in the state’s value chain.
Section B3.6 Engaging stakeholders

Consider a small-scale pilot project to test requirements and calibrate budgetary estimates.
Section B3.8 Resources

Map internal grievance/ feedback mechanisms, identify who can access them (for example,
staff, contractors, suppliers, sub-contractors and other relevant external stakeholders) and forwhich types of grievances/ feedback.
Section B3.9 Remedy
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DRIVING CHANGE THROUGH PUBLIC PROCUREMENTFIRST STEPS FORPROCUREMENT PRACTITIONERS
Map the top tiers of your value chain for upcoming large-scale tenders;
Use public data to see if there are reports of human rights issues for geographic regions,countries, sectors, or specific businesses relevant to your tender;
Select an upcoming tender with high risks to use as a pilot project.
Section C.1.1 Human rights risk identification and assessment

Incorporate a session on human rights in market testing exercises to gain an understandingof the maturity of the supplier base; to identify areas where progress can be achieved
immediately, and those where change will take more time;
In addition to market testing for suppliers, consider ways to get feedback from otherstakeholders, such as supplier associations, workers, worker organisations, civil society actors,
end-users/ service-users, as well as communities which may be impacted by human rights
abuses in the state’s value chain.
Section C1.2 Market testing and engagement

Consider introducing exclusion grounds for suppliers who have been found responsible
by courts of other official bodies of serious human rights abuses within a specific timeframe.
Section C2.1 Exclusion grounds

Identify whether there are social labels or certificates relevant to the goods, services or works
procured which could be referred to as requirements.
Section C2.2 Technical specifications

Include simple selection criteria which are transparent and readily achievable for suppliers,
and easily assessable for public buyers, such as a requirement that the supplier has a policy
which addresses human rights.
Section C2.3 Selection criteria

Consider how to give weight to human rights protections when scoring bids.
Section C2.4 Contract award criteria

Include requirements that suppliers disclose incident and remediation reports on labour
issues, discrimination, harassment or other relevant issues lodged with regulators or by othermeans.
Section C3.1 Conditions for performance of contracts

Consider cascading contractual requirements for suppliers to their sub-contractors.
Section C3.2 Sub-contracting

Establish a dialogue with suppliers on goals, risks and expectations, and how they intend tocomply with the contractual human rights requirements.
Section C4.1 Supplier performance monitoring

Include a requirement that suppliers report annually on how they are meeting human rights
requirements within the contract;
Discuss annual reports with suppliers and support them in developing action points toaddress risks and opportunities identified in reports.
Section 4.2 Supplier reporting

Consider including a requirement that suppliers provide access to an effective grievancemechanism for alleged victims of human rights abuses in their value chain.
Section C4.3 Grievance mechanisms

Adapt existing termination and escalation clauses to include severe human rights abuses as
grounds for remedial action and termination.
19
Section C4.4 Enforcement and termination of contracts

B
GUIDANCE FOR PROCUREMENTPOLICY MAKERS

This section is primarily aimed at public procurement planners and policy makers at
central and local levels. The objectives of this section are to:• Explain the legal basis for states to include requirements within public
procurement that suppliers respect human rights;• Explain how to frame human rights as a procurement policy objective;• Identify how to implement system-wide planning to support requirements that
suppliers respect human rights.

20

B1
B1.1
B1.2
B1.3

Legal and policy procurement frameworks and human rights
Human rights instruments
Sustainable public procurement instruments
Public procurement instruments

21
21
26
29

B2

Human rights as a policy objective

34

B3
System-wide planning
B3.1
Increasing leverage
B3.2 Risk management
B3.3 Coherence across government
B3.4 Supporting procurement personnel
B3.5 Supporting suppliers and market dialogue
B3.6 Engaging stakeholders
B3.7
Continuous evaluation and learning
B3.8 Resources
B3.9 Remedy

41
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44
49
52
55
56
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DRIVING CHANGE THROUGH PUBLIC PROCUREMENT

B1. LEGAL AND POLICY PROCUREMENT FRAMEWORKS AND HUMAN
RIGHTS
There is a legal basis for including requirements in public procurements that
suppliers respect human rights. International, supranational/ regional, and nationallaws require states to protect and respect human rights. Besides, states have legal
obligations and policy commitments in the areas of sustainable development,
transparency, corruption, and accountability.

FIRST STEPS• Identify relevant national laws, policies and guidance relating to
public procurement, sustainability and human rights to see what
human rights requirements are allowed and/ or required.

This section is structured around three types of legal instruments:
B1.1 Human rights instruments
B1.2 Sustainable procurement instruments
B1.3 Public procurement instruments
B1.1 HUMAN RIGHTS INSTRUMENTS

The United Nations Guiding Principles on Business and Human Rights (UNGPs)
detail the state duty to promote respect for human rights in their own value chainsand highlight that businesses have a responsibility to respect human rights,
including in their relationships with suppliers.28
The UNGPs were endorsed by the United Nations (UN) Human Rights Council in
June 2011 and are the first universally accepted international framework articulating
the respective duties and responsibilities of states and businesses in relation tohuman rights. The UNGPs have subsequently been affirmed by other UN humanrights bodies,29 numerous national governments,30 a range of international andregional organisations (including the Organisation for Economic Co-operation andDevelopment (OECD) and International Organization for Standardization (ISO),
which aligned respectively their Guidelines for Multinational Enterprises, andISO 26000 standard with the UNGPs), the European Union (EU) and the Councilof Europe, the International Finance Corporation and other international financeinstitutions, and investors.31 Accordingly, it can be said that state’s obligations toprotect human rights extend to protecting human rights within their value chains.32
The UNGPs draw their authority from pre-existing international human rights laws.
The UNGPs affirm that the state duty to protect human rights extends to situations
where a commercial “nexus” exists between public actors and businesses.33 The
UNGPs highlight that:21

DRIVING CHANGE THROUGH PUBLIC PROCUREMENT“States must protect against human rights abuse within their territory and/or
jurisdiction by third parties, including business enterprises. This requires taking
appropriate steps to prevent, investigate, punish and redress such abuse througheffective policies, legislation, regulations and adjudication.”34

POLICY MAKERS

The UNGPs elaborate on existing obligations under international law. They notethat states should require, where appropriate, state-owned or controlled enterprises
to exercise human rights due diligence.35 They clarify that this duty extends tosituations where states enter into commercial relationships, including throughpublic procurement.36 Where states engage in privatisation or “contracting out”
services that may impact on human rights, they must “exercise adequate oversight”,
including by ensuring that contracts or enabling legislation communicate thestate’s expectation that service providers will respect the human rights of serviceusers, i.e. their citizens.
The UNGPs provide that “States should promote awareness of and respectfor human rights by business enterprises with which they conduct commercial
transactions”.

�The UNGPs note that:“States conduct a variety of commercial transactions with businessenterprises, not least through their procurement activities. This
provides States – individually and collectively – with unique
opportunities to promote awareness of and respect for human rights by
those enterprises, including through the terms of contracts, with due
regard to States’ relevant obligations under national and internationallaw.”37

The UNGPs also highlight that states must ensure ‘policy coherence’, in otherwords, alignment with human rights obligations of standards and policies across allstate departments, agencies, and other state-based institutions that shape businesspractices,38 which includes public procurement bodies.

Colombia Compra Eficiente’s Guide on Socially Responsible Public
Procurement highlights that “state entities and suppliers, both nationaland foreign, should apply processes in public procurement which
advance the UN Guiding Principles on Business and Human Rights.”

Turning to businesses; all businesses have a responsibility to respect humanrights, just as the state has a duty to implement laws, policies, and guidance toensure that all businesses meet their responsibility to respect human rights. The

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DRIVING CHANGE THROUGH PUBLIC PROCUREMENTUNGPs confirm that business’ responsibility to respect human rights applies “toall business enterprises, both transnational and others, regardless of their size,
sector, location, ownership and structure”.39 On the other hand, it is recognisedthat measures by individual businesses to meet this responsibility will reflect theirvarying capacities and resources. More sophisticated measures to address humanrights risks will be expected of a multi-national enterprise, for example, than of asmall and medium-sized enterprise (SME).
According to the UNGPs, businesses should “[s]eek to prevent or mitigate adverse
human rights impacts that are directly linked to their operations, products orservices by their business relationships, even if they have not contributed to those
impacts.” The UNGPs further highlight that “business enterprises may be involved
with adverse human rights impacts either through their own activities, or as a resultof their business relationships with other parties”. “Business relationships” areunderstood to include relationships with “entities in its value chain, and any othernon-State or State entity directly linked to its business operations, products orservices”.40
An increasing number of states are adopting a business and human rights national
action plan (NAP) to articulate priorities and actions that it will adopt to support theimplementation of the UNGPs.41
In addition to the UNGPs, the International Labour Organization (ILO) Labour
Clauses (Public Contracts) Convention 1949 establishes a legal base for protecting
worker’s rights in public procurements.
HUMAN RIGHTS DUE DILIGENCE
Human rights due diligence is a process described by the UNGPs to operationalise
the corporate responsibility to respect human rights. The responsibility forbusinesses of all sizes to undertake human rights due diligence has been
reinforced by UN bodies and the OECD, amongst others.42 Some states havealready established laws and policies to require businesses to do due diligence.
This includes France’s Corporate Duty of Vigilance Law and the Netherlands’ Child
Labour Due Diligence Law.
By undertaking human rights due diligence a business can identify, prevent,mitigate and account for human rights impacts that it may cause or contribute tothrough its own activities, or which may be directly linked to its operations, products
or services via business relationships. The UNGPs highlight that human rights due
diligence:• Should cover all potential and actual adverse human rights impacts;• Will vary in complexity with the size of the business enterprise, the risk of severe
human rights impacts, and the nature and context of its operations;• Should be ongoing, recognizing that the human rights risks may change over timeas the business enterprise’s operations and operating context evolve.

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POLICY MAKERS© Guilherme Cunha, Unsplash

DRIVING CHANGE THROUGH PUBLIC PROCUREMENTThe OECD has also developed ‘Due Diligence Guidance for Responsible BusinessConduct’ which takes the UNGPs as a starting point. (see Section B3.2 Risk
management to see what human rights due diligence could look like for publicbuyers).
RECENT POLICY DEVELOPMENTS ON PUBLIC PROCUREMENT AND
HUMAN RIGHTS
A range of bodies have developed recommendations and guidelines on public
procurement and human rights in the wake of the UNGPs.
The OECD Guidelines for Multinational Enterprises address ‘responsible businessconduct’ (RBC) in a range of areas including human rights, employment andindustrial relations, environment, combating bribery, and science and technology.43
Building on the OECD Guidelines for Multinational Enterprises, a recent OECD
concept note highlights that using public procurement to encourage responsible
business conduct and respect human rights makes sense for several reasons:• Public funds should not contribute to adverse environmental or social impacts ofbusiness operations;• States expect business to behave responsibly. So states should lead by example,
for instance, by requiring suppliers to perform human rights due diligence;• A growing body of evidence indicates that RBC pays off for business. The potential
benefits of behaving and procuring responsibly, such as reduced lifecycle costs,
higher quality products, less disrupted and more efficient supply chains, also
apply to governments;• States have a national interest to encourage other countries to integrate RBC
considerations into their public procurement processes to promote a level playing
field for their own companies when operating abroad.

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DRIVING CHANGE THROUGH PUBLIC PROCUREMENT

Modern slavery, forced labour and human trafficking are widespread violationsof human rights affecting most states. According to the US Trafficking In Persons
Report of June 2019 “traffickers are robbing a staggering 24.9 million people oftheir freedom and basic human dignity”. The Organization for Security and Cooperation in Europe (OSCE) adopted Model Guidelines on Government Measures
to Prevent Trafficking for Labour Exploitation in Supply Chains in 2018. These
are a practical tool to assist states in introducing concrete measures to prevent
trafficking in human beings in supply chains. The OSCE Model Guidelines include
templates for legislation and policies to promote transparency to ensure that public
supply chains are free from trafficked labour and to promote the fair and ethicalrecruitment of workers.
For some states, ratifying an international human rights convention means thatit becomes immediately binding at the national level. In others, states must pass
separate national laws to implement human rights conventions. International
standards set a minimum benchmark and states can go beyond these andimplement higher human rights protections of their own design. It is therefore
important to identify which human rights laws are binding on procurement
authorities in each country individually.

In Indonesia, Law No. 39 Year 1999 - Concerning Human Rights,
provides:“Article 71: The government shall respect, protect, uphold andpromote human rights as laid down in this Act, other legislation, andinternational law concerning human rights ratified by the Republic ofIndonesia.
Article 72: The duties and responsibilities of the government as referred
to in Article 71, include measures towards effective implementation inlaw, politics, economics, social and cultural aspects, state security, andother areas.”

In the UK, the Human Rights Act 1998 introduces human rights
protections in line with the UK’s international legal obligations. Section
6 of the Human Rights Act makes it unlawful for any public authority tobreach human rights. Section 6 extends to all acts of public authorities,
including purchasing, so applies to contracts for the delivery of public
services, including housing, social care, security services, and the
management of prisons and detention facilities related to asylum andimmigration.44

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DRIVING CHANGE THROUGH PUBLIC PROCUREMENT

B1.2 SUSTAINABLE PROCUREMENT INSTRUMENTS

In 2015, the UN General Assembly unanimously adopted the 2030 Agenda for
Sustainable Development (the 2030 Agenda) as “a plan of action for people, planet
and prosperity”. It provides a comprehensive and universal framework uniting theenvironmental, social and economic dimensions of sustainable development. The
2030 Agenda and its 17 Sustainable Development Goal (SDGs) “seek to realize thehuman rights of all” while encouraging all stakeholders to focus on implementation
by “acting in collaborative partnership”. It contains 169 global targets and 232
indicators to measure progress in implementation, and a set of follow-up andreview principles and mechanisms.

POLICY MAKERS

SDG 8 addresses decent work and economic growth. SDG 9 sets targets forindustry, innovation and infrastructure and SDG 12 addresses responsible
consumption and production. The role of business in relation to each of these three
SDGs is self-evident. But contributions from business are needed to fulfil the vast
majority of the 2030 Agenda’s other goals and subsidiary targets as well.
Consequently, many business associations and individual businesses haveembraced the SDGs.45 Various platforms and initiatives have emerged to harness
the power of business in realising the SDGs.46 Today, the 2030 Agenda is a leading
narrative about the role of business in society.47
The transformative potential of public procurement as a driver for human rights
and sustainable production and consumption is highlighted in SDG 12.48 Target
12.7 calls on all states to “[p]romote public procurement practices that are
sustainable, in accordance with national policies and priorities”. This provides anopportunity for states not only to procure from suppliers which deliver the cheapest
product quickest but also to prioritise procurement from suppliers which respect
the three dimensions of sustainable public procurement; economic, social andenvironmental. For example, procurement exercises can place a focus on procuringfrom suppliers which have effective measures in place to eliminate forced labourand human trafficking, in line with target 12.7, but also as a means of realisingtarget 8.7 and 16.3 to end child labour, forced labour, modern slavery and humantrafficking.49 Including requirements that suppliers respect human rights can beapplied to first tier suppliers and cascaded down to sub-contractors both at home
and abroad to support the fulfilment of the SDGs across the world.
Until recently, sustainable public procurement largely concentrated on
environmental impacts, through ‘green’ procurement policies and initiatives.50
Over time, greater emphasis has been put on achieving the appropriate balance
between the three pillars of sustainable development – economic, social, andenvironmental – across all stages of the public procurement process, where thesocial element reflects human rights.51 This is visible in the increasing emphasisthat significant procurement frameworks, such as the EU 2014 Directives and World
Trade Organisation, have placed on sustainable considerations (see Section B1.3
Public procurement instruments).

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DRIVING CHANGE THROUGH PUBLIC PROCUREMENTThe International Institute for Sustainable Development in coordination
with the Inter-American Network on Government Procurement
produced a handbook on Implementing Sustainable Public
Procurement in Latin America and the Caribbean in 2015, recognisingthat “Sustainable Public Procurement (SPP) is about ensuring that the
products and services purchased by governments are as sustainable
as possible, both in the sense of generating the lowest possible
environmental impact, and in the sense of producing the most positivesocial impacts.”

Colombia Compra Eficiente’s Guide on Socially Responsible Public
Procurement states that:“Sustainable development implies the application of sociallyand environmentally responsible practices by the authorities
when contracting goods and services. The objective is to reach an
appropriate balance between all the pillars of sustainability: economic,
environmental and social, at all stages of the public procurement
process. In this way, public policy for sustainable development implies
fostering a cycle in which these three aspects reinforce and do notundermine each other.
The objectives of social sustainability are based on the duty of theState and its entities to protect and providers to respect human rights
in the interactions they have in the public procurement system. It also
includes the adoption of measures and criteria that generate local
employment and promote equal opportunities for vulnerable groups
such as people with disabilities, ethnic minorities, women and victims of
the armed conflict.
The incorporation of these measures and criteria generates value formoney in public purchases, optimizing public resources in terms oftime, money and capacity of human talent and efficiency in processes
to meet the needs of State Entities and fulfil their mission.”

Besides the SDGs, in the wake of the UNGPs, a range of organisations havepromoted the importance of responsible global value chains, including the G7,
OECD, ILO, and OSCE.52

�Including requirements within public procurement that suppliers
respect human rights is a means of realising the SDGs.

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The International Organization for Standardization (ISO), with a membership of
164 national standards bodies, creates requirements, specifications, guidelines orcharacteristics to ensure that materials, products, processes and services are fit for
purpose. ISO 20400:2017 on Sustainable Procurement Guidance includes a list of
main principles for sustainable procurement, highlighting that “[a]n organization
should respect internationally recognized human rights.” It builds from ISO 26000
on Social Responsibility and is guidance rather than a certifiable standard. It
identifies core subjects of sustainable procurement including:• Human rights: due diligence, human rights risk situations, avoidance of complicity,
resolving grievances, discrimination and vulnerable groups, civil and politicalrights, economic, social and cultural rights, fundamental principles and rights atwork;• Labour practices: employment and employment relationships, conditions ofwork and social protection, social dialogue, health and safety at work, humandevelopment and training in the workplace;• Community involvement and development: community involvement, educationand culture, employment creation and skills development, technology
development and access, wealth and income creation, health, social investment.

© Frank Albrecht, Unsplash

POLICY MAKERS

DRIVING CHANGE THROUGH PUBLIC PROCUREMENT

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DRIVING CHANGE THROUGH PUBLIC PROCUREMENT

B1.3 PUBLIC PROCUREMENT INSTRUMENTS

Public procurement is regulated through law and policies at international,
supranational/ regional, and national (state and federal) levels.
INTERNATIONALThe United Nations Commission on International Trade Law Model Law
on Public Procurement (2011) is intended to serve as an outline fornational legislation to improve domestic regulatory regimes for public
procurement. It contains principles and procedures aimed at achieving
value for money and avoiding abuses in the procurement process, forinstance, corruption. In its Preamble, the Model Law sets out six main
objectives: economy and efficiency; international trade; competition;
fair and equitable treatment; integrity, fairness, and public confidence
in the procurement process; and transparency. Although there isno specific mention of human rights in the Model Law, it does allow
for the integration of social and economic criteria into procurement
processes, such as promoting accessibility of procurement to SMEs or
disadvantaged groups, environmental criteria, and ethical qualification
requirements. The Guide to Enactment further notes that human rights
can feature as social aspects of sustainable procurement and can beaddressed through socio-economic evaluation criteria.53

The World Trade Organization (WTO) Agreement on Government
Procurement (1994) is a pluri-lateral agreement within the frameworkof the WTO.54 It applies only to the members of the WTO who haveacceded to it. The fundamental objectives of the Agreement are:
• Greater liberalisation and expansion of international trade;• Non-discrimination: measures prepared, adopted, or applied to
public procurement must not afford more protection to domestic
suppliers, goods, or services, or discriminate against foreign
suppliers, goods, or services;• Integrity and predictability, to ensure efficient and effective
management of public resources; and• Transparency, impartiality, avoidance of conflicts of interest andcorruption.55

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DRIVING CHANGE THROUGH PUBLIC PROCUREMENTSUPRANATIONAL/ REGIONAL
In the EU, all public buyers are required to abide by EU procurement
directives for specific procurements over certain thresholds.56
Article 18(2) of EU Directive 2014/24/EU stipulates that “Member
States shall take appropriate measures to ensure that in theperformance of public contracts economic operators comply withapplicable obligations in the fields of environmental, social and labour
law established by Union law, national law, collective agreements or by
the international environmental, social and labour law provisions listed
in Annex X.” Annex X references several environmental conventions
and the 8 ILO Core Conventions.

POLICY MAKERS

Article 57(1) contains mandatory grounds for exclusion. These include
when an economic operator has been convicted of criminal offences
relating to participating in a criminal organization, corruption, humantrafficking, or breach of obligations relating to tax payments. Further,
discretionary grounds for exclusion pursuant to Article 57(4) EU
include the possibility for public authorities to exclude suppliers when
the contracting authority can demonstrate by any appropriate means aviolation of applicable obligations referred to in Article 18(2).

© anastaijalangere

Article 69 requires contracting authorities to reject tenders that areabnormally low due to poor human rights standards, in case thesupplier is unable satisfactorily to account for the low level of the price.

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DRIVING CHANGE THROUGH PUBLIC PROCUREMENTNATIONAL
Almost all states have national laws specific to public procurement, and other laws
which are applicable to public procurement in the areas of environment, anticorruption, and transparency, for example. As highlighted above, a state can utilise
public procurement as a vehicle to respect, protect, and fulfil human rights, in linewith its international obligations.

Belgium’s Public Procurement Act of 2017 requires that suppliers andsub-contractors comply with environmental, social and labour laws.
Under the law, failure to do so can be used as a ground for exclusion.
The public buyer can require a specific label as evidence of humanrights compliance for goods and services. The buyer can also introduce
minimum standards as technical specifications applicable across the
lifecycle of the goods and services, including the recycling stage.

The Swedish Public Procurement Act of 2016 states that:“A contracting authority shall, if it is necessary, require that the supplierperforms the contract according to stated requirements under thecore conventions of the ILO, if the performance is made under suchconditions that Swedish labour law is not applicable.”57

Switzerland’s updated National Action Plan 2020–23 on business andhuman rights notes that:“Public procurement practices in Switzerland are governed by theFederal Act on Public Procurement (PPA) and the Ordinance on Public
Procurement (PPO).58 The PPA stipulates that the federal government
must, as a minimum, monitor compliance with the core ILO conventions
where goods and services are to be supplied abroad. The contracting
authority may require bidders to comply with other core international
labour standards, provide proof of compliance, and agree to audits.”

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DRIVING CHANGE THROUGH PUBLIC PROCUREMENT

In the USA, the rules for procurement by federal agencies arecontained in the Federal Acquisition Regulation (FAR).59 The FAR
consolidates public laws adopted by Congress, Executive Orders
issued by the President, and treaties that have the force of law in theUSA. It is managed by a FAR Council, which is composed of threefederal agencies—the General Services Administration (GSA), theDepartment of Defense (DOD), and the National Aeronautics and Space
Administration (NASA). All federal agencies must comply with the FAR,
but individual agencies may issue their own supplements.60

POLICY MAKERS

The federal procurement framework in the USA addresses somehuman rights issues. For example, the FAR prohibits federal
contractors and their sub-contractors from engaging in trafficking inpersons and trafficking-related activities, such as charging workers
recruitment fees or using misleading and fraudulent recruitment
tactics. Contractors are required to report possible violations of the
FAR’s policy prohibiting trafficking in persons to the United States
Government contracting officer and the agency Inspector General.
In addition, contractors providing supplies or services (other thancommercially available off-the-shelf items) acquired or performed
outside the USA with an estimated value exceeding USD $500,000 are
required to maintain a compliance plan that is certified annually.61
The FAR also implements Executive Order 13126, which prohibits theacquisition of products produced by forced or indentured child labourand mandates the United States Department of Labor to produce a ‘Listof Products Produced by Forced or Indentured Child Labor’. Federal
contractors who supply products on the Department of Labor’s list
are required to certify that they made a good faith effort to determine
whether forced or indentured child labour was used to make the item
supplied.62
Under the FAR, federal contractors that source their goods or services
domestically are prohibited from discriminating on the basis of various
categories such as race and national origin.63 Contractors are required to
pay all employees in the USA the prevailing wages and benefits for the
locality in which the work is performed.64 In addition, the Walsh-Healey
Public Contracts Act of 1936 establishes minimum wage, maximum
hours, and safety and health standards for work on contracts in excessof USD $15,000 for the manufacturing or furnishing of materials,
supplies, articles, or equipment to the United States Government.65
Local (i.e. federal states) and municipal governments within the USA
have implemented additional regulations on human rights (e.g. theCalifornia Transparency in the Supply Chains Act 2010 (SB657)).

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© Sasin Tipchai

DRIVING CHANGE THROUGH PUBLIC PROCUREMENTSUB-NATIONAL
For some federal states or states with regions which can legislate, there may also
be laws at sub-national level which address public procurement. Such sub-nationallaws can exist where there are no national laws. Even if there is a national law onpublic procurement, local procurement laws may, in some cases, impose higher
human rights requirements.

In Scotland, the Procurement Reform (Scotland) Act 2014 (the Act)
introduced a sustainable procurement duty on the Scottish public
sector to “improve the economic, social, and environmental wellbeingof the authority’s area, facilitate the involvement of small and medium
enterprises, third sector bodies and supported businesses in theprocess, and promote innovation” throughout the procurement
process. The Act also requires public organisations with an estimatedannual regulated spend of GBP £5 million or more (excluding VAT) todevelop and review a procurement strategy annually before the start of
the next financial year. Each corporate procurement strategy should be
proportionate to the size and spend of the organisation. However, there
are some fundamental principles which will apply in each case. In
general terms, the procurement strategy should demonstrate how theorganisation's approach to procurement supports delivery of its broader
aims and objectives, including the sustainable procurement duty. Oncethe procurement strategy is developed, it should be approved by Heads
of Service/the Senior Corporate Management Team (or equivalent).
Progress against the procurement strategy requires to be tracked andreported in an annual procurement report, which every organisation inscope of the duty must also publish to support transparency. This
report should highlight any commitments which have not been met,
detailing action plans to address any issues.66

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DRIVING CHANGE THROUGH PUBLIC PROCUREMENT

B2. HUMAN RIGHTS AS A POLICY OBJECTIVE
There is not a one-size fits all approach to including supplier requirements onhuman rights in public procurements. To start with, human rights requirements canbe framed within a current policy objective or developed as a standalone policy
objective.

FIRST STEPS
Identify current public procurement policy objectives and explore howhuman rights are, or could be, incorporated within these.

POLICY MAKERS

The EU Directive on Public Procurement (2014/24/EU) is intended tomodernise public procurement by increasing the efficiency of public
spending, facilitating the participation of SMEs in public procurement,
and enabling procurers to use procurement to further common societal
goals.67
This and the EU’s other procurement directives allow publicauthorities in its member states to “engage in socially-responsible
public procurement by buying ethical products and services, and byusing public tenders to create job opportunities, decent work, socialand professional inclusion and better conditions for disabled anddisadvantaged people.”

LOWEST COST, BEST VALUE FOR MONEY, OR SUSTAINABLE
PROCUREMENT?
Ensuring best value for money is gradually becoming a well-established policy
objective as procurement policy-makers around the world move away fromprocurement based exclusively on cheapest price. Procurement focused on lowest
price have been associated, in the private sector, with human rights abuses. The
tendency towards so-called ‘fast fashion’,68 for instance, was implicated in the 2013
Rana Plaza disaster in Bangladesh where five garment factories collapsed killing atleast 1,132 people and injuring more than 2,500.
Under the concept of best value for money it is understood that public funds should
be used to achieve the best results to meet requirements. By contrast with lowest
price, best value for money encompasses other considerations, including economic,
but also social (human rights) and the environmental aspects of sustainability.
With the adoption of the UN 2030 Sustainable Development Agenda, there
has been an increasing focus on SDG 12.7 on sustainable public procurement.
More and more states, for instance, are now adopting national action plans onsustainable public procurement. Sustainable public procurement encompasses

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DRIVING CHANGE THROUGH PUBLIC PROCUREMENT

environmental, social and economic considerations, where the social element is
informed by human rights. As such, sustainable public procurement can be a good
policy vehicle to drive the inclusion of requirements within public procurement that
suppliers respect human rights.

In Costa Rica, the National Policy of Sustainable Public Procurement
and Creation of the National Steering Committee of Sustainable
Procurement of 2015 provides in Article 4:“For the purposes of this National Sustainable Public Procurement
Policy, the Public Sector, which supplies goods, works and services,must take into account innovation and the following considerations
when making the purchase:a) Economic: The monetary value, price, availability, quality andfunctionality of the products, associated with a sustainable
perspective.
b) Environmental: the environmental effects that a product or service
has throughout its life cycle must be taken into account.
c) Social: social effects linked to issues such as poverty eradication,
equity in the distribution of resources and human rights should beconsidered. As well as compliance with labour and social norms
and guarantees that protect the workers involved in all stages ofthe elaboration of products purchased or services contracted by
the Administration, considering the related laws on the eradicationof child labour, protection of workers, Law for the Promotion of
Women’s Social Equality and the Law on Equal Opportunities for
Persons with Disabilities.
In each of the above considerations, the promotion of SME participation
should be taken into account.”

Colombia’s Compra Eficiente states in its Guide on Socially Responsible
Public Procurement that “[t]he incorporation of responsible businessconduct in public procurement allows the State to obtain value formoney because it addresses risk factors, such as negative impacts onsustainability and human rights violations and abuses.”35

DRIVING CHANGE THROUGH PUBLIC PROCUREMENTPOLICY MAKERS

In Peru, Article 51 of the Regulation of Law No. 30225, State
Contracting Law of 2018 defines evaluation factors for the procurementof different categories of goods, services and works. The majorityof categories provide for the evaluation of factors “related toenvironmental or social sustainability”. Subsequent directives elaboratethat the evaluation factors related to sustainability include:• A certificate that accredits that a system of health and safety
management at work has been implemented in accordance with the
OHSAS 18001: 2007 norm or similar standard (ISO 45001: 2018)• A certificate that certifies that a social responsibility management
system has been implemented in accordance with the SA 8000: 2014
standard• A certificate that certifies a business as a “Safe company, free ofviolence and discrimination against women” granted by the Ministryof Women and Vulnerable Populations (MIMP).

The Northern Ireland Executive has defined best value for money as themost advantageous combination of cost, quality and sustainability tomeet customer requirements. In this context:• Cost means consideration of the whole life cost;• Quality means meeting a specification which is fit for purpose andsufficient to meet the customer’s requirements;• Sustainability means economic, social and environmental benefits,considered in the business case, in support of the Programme forGovernment.

In Scotland, Regulation 67 of The Public Contracts (Scotland)
Regulations 2015 requires EU-regulated contracts to be awarded to the‘most economically advantageous tender’, also known as MEAT. MEAT
criteria must be made up of price or cost, and other criteria associatedwith the quality of products and services. This means that EU-regulated
contracts may not be awarded on the basis of lowest price or lowest
cost only. Statutory guidance published under the Procurement
Reform (Scotland) Act 2014 makes it clear that this approach should
also be applied to regulated procurements (GBP £50,000 up to EU
thresholds).

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DRIVING CHANGE THROUGH PUBLIC PROCUREMENTIn Kenya, the Public Procurement and Asset Disposal Act 2015, contains
ten guiding principles for public procurement, including, amongst
others:• National values and principles (defined in the Constitution to
include the rule of law, democracy and participation of the people,
human dignity, equity, social justice, inclusiveness, equality, humanrights, non-discrimination and protection of the marginalised,
good governance, integrity, transparency and accountability, andsustainable development);• Equality and freedom from discrimination;• Affirmative action programmes for youth and minorities andmarginalised groups;• Value for money;• Promotion of local industry, sustainable development and protectionof the environment.

SELECT ONE OR ALL HUMAN RIGHTS?
Around the world, there are many examples of procurement policies that directly or
indirectly promote the inclusion of human rights within public procurement. Someare found in national legislation or policy, while others originate with decisions bylocal municipalities.
In practice such policies often address selected human rights issues, rather thanaddressing all human rights at once. Where one or a sub-set of human rights
issues is prioritised, this should be on the basis of a risk assessment that should be
revisited on a regular basis (see Section C1.1 Human rights risk identification andassessment and the Human Rights Impact Assessment Guidance and Toolbox).

The UK adopted the Modern Slavery Act in 2015. The Crown
Commercial Service, the biggest public procurement organisationin the UK, has introduced specific requirements on modern slavery
including on grounds for mandatory exclusion and in contracts. In
November 2018 Electronics Watch and Crown Commercial Service
began working in partnership to detect and address modern slavery insupply chains of public sector customers seeking assured technology
hardware purchasing options.

In Zambia, section 63 of the Public Procurement Act 2008 states thata procuring entity may “grant a margin of preference for the benefits ofbids by a target group offering goods, works or services manufactured
or performed by the target group”, with target groups including“enterprises owned by women” or “any other group designated byGovernment policy”.
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DRIVING CHANGE THROUGH PUBLIC PROCUREMENTPOLICY MAKERS

HUMAN RIGHTS AS A PRIMARY OR SECONDARY POLICY OBJECTIVE?
According to the OECD’s Public Procurement Toolbox:• A “Primary procurement objective” refers to delivering the goods and services
necessary to accomplish a government mission in a timely, economical andefficient manner.
• A “Secondary policy objective” refers to “any of a variety of objectives suchas sustainable green growth, the development of small and medium-sizedenterprises, innovation, standards for responsible business conduct or broader
industrial policy objectives, which governments increasingly pursue throughuse of procurement as a policy lever, in addition to the primary procurement
objective.”69
However, there is a tension in treating human rights as a secondary policy objective,
given the state’s obligation to protect human rights (see Section B1.1 Human rights
instruments).70 Given this, complying with the state’s obligations under humanrights laws should not understood as an optional or discretionary objective. Meetingthese obligations can be advanced by framing existing primary objectives, such as
best value for money, most economically advantageous tender, or value chain risk
management as including human rights requirements – and following through withsupporting measures (see Section B3. System-wide planning).

The Belgian Public Procurement Act of 2017 requires that tenders are
selected on the “most economically advantageous quotation” andprovides three ways to reach this:• Cheapest price;• Cost efficiency (total cost of ownership / life cycle cost);• The best price-quality ratio (based on cost and other criteria including
environmental and social issues).71

EMPOWERING VULNERABLE AND AT-RISK GROUPS
The main focus of including requirements within public procurement that suppliers
respect human rights should be to address the risk of human rights abuses
occurring in state value chains. However, public procurement can also be useda means to realise the rights of groups at risk of vulnerability or marginalisation
by favouring businesses which support, employ, or are owned by members ofsuch groups, in public procurement exercises. In general a decision to favour aparticular group on human rights grounds should follow an objective assessmentwith reference to human rights standards (see Section C1.1 Human rights risk
identification and assessment and the Human Rights Impact Assessment Guidance
and Toolbox).

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DRIVING CHANGE THROUGH PUBLIC PROCUREMENTSouth Africa has developed a programme of Broad-Based Black
Economic Empowerment to redress inequality and discrimination
stemming from the Apartheid era. As part of this approach, public
procurement legislation grants preferential treatment to black-owned
businesses which have been verified. Preferential treatment varies bysector and size of business.

The USA has a system of ‘set-aside’ contracts to help provide a levelplaying field for small businesses, by limiting competition for certain
contracts to small businesses. The federal government tries to award:• At least 5% of all federal contracting dollars to small disadvantaged
businesses each year;• At least 3% of all federal prime contracting dollars to HUBZonecertified small businesses each year;• At least 5% of all federal contracting dollars to women-owned small
businesses each year;• At least 3% of annual federal contracting dollars to service-disabled
veteran-owned small businesses.

Canada established the Procurement Strategy for Aboriginal Businessin 1996 to support indigenous businesses pursue federal procurement
tenders. In 2019 the Canadian Government began a process to review“the federal approach to Indigenous procurement including theProcurement Strategy for Aboriginal Business in order to:• Increase the number of federal procurement opportunities for
Indigenous business• Increase the number of Indigenous small to medium sizedenterprises bidding on and winning federal contracts• Grow Indigenous business• Create employment opportunities for Indigenous peoples• Increase self-reliance• Increase employment and training opportunities for Indigenous
peoples”

39DRIVING CHANGE THROUGH PUBLIC PROCUREMENTIn Scotland, the sustainable procurement duty, outlined in the
Procurement Reform (Scotland) Act 2014, requires that, before acontracting authority buys anything, it must think about how it can
improve the social, environmental and economic wellbeing of the area
in which it operates, with a particular focus on reducing inequality. It
also requires a contracting authority to consider how its procurement
processes can facilitate the involvement of SMEs, third sector bodies
and supported businesses, and how public procurement can be used
to promote innovation. Each contracting authority must set out in its
procurement strategy how it intends to comply with the duty and must
report annually on progress.72

POLICY MAKERS

The Scottish Government has developed a Scotland Government
Procurement Strategy which details how it approaches thesustainability procurement duty and the human rights and equality
element of this.

© Ricardo GOmes Angel, Unsplash

In 2008, the Dominican Republic adopted a law setting out aprogramme of preferential purchasing to support SMEs and legislated
that 20% of purchases through this programme should be frombusinesses run by women, who have a shareholding or share capital ofmore than 50%.

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DRIVING CHANGE THROUGH PUBLIC PROCUREMENT

B3. SYSTEM-WIDE PLANNING
It is important for policy makers and planners to develop a systematic approach toincluding requirements within public procurement that suppliers respect humanrights. This is essential to maximise impact and efficiency and also to support frontline staff in implementing human rights protections within public procurement.
This section is structured around the following issues:
B3.1 Increasing leverage
B3.2 Risk management
B3.3 Ensuring coherence in implementation
B3.4 Supporting procurement personnel
B3.5 Supporting suppliers and market dialogue
B3.6 Engaging stakeholders
B3.7 Continuous evaluation and learning
B3.8 Resources
B3.9 Remedy
B3.1 INCREASING LEVERAGE

FIRST STEPS• Investigate whether there are existing framework agreements andpurchasing consortia that have started to address human rights
issues that you can use or join.

�Leverage refers to the ability to effect change in the wrongful practicesof another party which is causing or contributing to a human rights
abuse. In the context of procurement, leverage can be exerted by apublic buyer over its actual and potential suppliers, and likewise by asupplier with regard to its suppliers and sub-contractors.73

Individual procurement exercises may not have the leverage needed to influence
actual and potential suppliers in a state buyer’s value chain. Grouping procurement
exercises internally, in collaboration with other public buyers, and/ or throughframework contracts, can increase purchasing power. SMEs may not be able
to bid for large single procurements, so care should be taken allow them tocompete through the use of lots, for example. Grouping procurement exercises
also promotes common standards for suppliers, which increases the incentive forsuppliers to meet them and avoids creating a range of different requirements.

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DRIVING CHANGE THROUGH PUBLIC PROCUREMENT

A prerequisite for collaboration between public buyers is mutual recognition ofother public buyers’ policies, provided that they set equivalent standards. Thisapplies both to collaborations between public buyers within the same state andcross-border collaborations. Such collaborations include:• Establishing central purchasing bodies;• Framework agreements/ sign-on provisions;• Implementing collective monitoring and information sharing.

POLICY MAKERS

In Sweden, the Legal, Financial and Administrative Services Agency(Kammarkollegiet) streamlines public administration by concluding
framework agreements for all national level authorities. The Agency
concludes framework agreements for goods and services that national
authorities procure often, to large amounts or for a substantial value,
for example, ICT, office supplies, transportation and security services.
The Agency has conducted risk assessments, focused on human rights,
for all their framework agreements and include requirements basedon these assessments. By representing all national level authorities
in Sweden, the requirements in these framework agreements create
a level playing field across the supplier base. Because the frameworkagreements are continuously used, suppliers are also prepared for therequirements and can enter into dialogue with potential buyers at an
earlier stage which thereby better enables continuous improvement
among the suppliers.

Smaller public buyers may not have the resources to develop relevant criteriaof their own. Instead, they can ‘piggy-back’ on the work of other public buyersthat have already done so. This minimises the risk of suppliers not answering
a call for tender because they simply do not see the added benefit of adapting
to requirements in contracts with a relatively low value. Public buyers can also
consider joining a purchasing consortium.

In the UK, there are six regional higher education purchasing consortia
which work collaboratively, and with other specialist sector purchasingorganisations, to tender and manage more than 100 EU-compliant
framework agreements for their members to use. One of these,
the London Universities Purchasing Consortium, is a not-for-profit
professional buying organisation owned by its members. It mainlycomprises universities and colleges of higher education in and around
London. However, around half of LUPC’s membership is also drawn
from other not-for-profit organisations from neighbouring sectors in thearts, sciences and education. The LUPC has established a Responsible
Procurement Advisory Group which provides advice to its members. It
has also developed Equiano, a risk assessment tool for human rights
abuses in supply chains which is available for members to use.
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DRIVING CHANGE THROUGH PUBLIC PROCUREMENTFRAMEWORK AGREEMENTS
Many procurement bodies operate framework agreements. Under suchagreements, a public buyer can place orders with a supplier, or range ofsuppliers, without undertaking a new procurement exercise for each purchase.
In some jurisdictions, central state bodies are mandated to use these frameworkagreements in their own procurement exercises above a certain value. Elsewhere,
framework agreements are established for voluntarily use by state bodies, selfgoverning institutions, and local state institutions (for example, cities and regions).
Framework agreements are a good way to increase leverage and influence a
supplier base.

The City of Madison, USA, in consultation with the Sweatfree
Purchasing Consortium, has created a collaborative ’piggy-back’
contract for apparel, mainly used by Fire, Metro Transit, Police and othermunicipal operations agencies. The contract is available for use by all
City of Madison agencies, approximately 167 other local government
counties, cities, towns, villages, school districts, libraries, utilities andother public entities in the South-eastern Wisconsin area, as well asother public agencies in the USA. Each agency has the opportunity
to join in the bid, which helps agencies with limited resources toparticipate in tenders where the ground work of setting requirements
has already been done.

Electronics Watch is an organisation to which contracting authorities canbecome affiliates. It currently has 45 affiliates globally. The contracting
authorities that affiliate with Electronics Watch gain access to country
and factory specific risk assessments, a guide and toolkit to implement
labour rights standards in tenders, template contracts, information on
worker-driven monitoring, and platforms to engage with the electronics
sector. This model allows Electronics Watch to coordinate sector
engagement for all affiliates making the leverage towards the sector
much stronger. The cost to affiliate depends on the organisational
spend on ICT hardware.

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DRIVING CHANGE THROUGH PUBLIC PROCUREMENTCOLLECTIVE MONITORING AND INFORMATION SHARING
Collaboration amongst public buyers can greatly increase the impact – and reducethe costs – of value chain mapping, risk assessment and third party audits of highrisk suppliers, for example. It also facilitates continuous learning. Public buyerspurchase many of the same goods and services as each other. This would result in
duplication and cost inefficiencies, if each individual public buyer were to conduct
the same risk assessments and audit the same production sites.
Instead, public buyers should seek to identify opportunities for sharing information
gained by conducting risk assessments and audits with each other. They should also
consider allocating roles and tasks between themselves to cover a wider range ofgoods, services and works than they could reach individually.

POLICY MAKERS

The Swedish central purchasing body SKL Kommentus provides aservice for local and regional contracting authorities to sign on to acentralised supplier monitoring system. SKL Kommentus continuously
audits suppliers under their framework agreements through third
party audits. Each year, two or three high risk categories of goods arechosen for further monitoring through a three-step process of supplierself-assessment, desktop audit, and on-site audit. The results andcorrective action plans are published on the SKL Kommentus website.
This approach avoids potential duplication of audits and the results
can also form a basis for contracting authorities when conducting risk
assessments.

B3.2 RISK MANAGEMENTFIRST STEPS• Learn about human rights due diligence as described by the UN
Guiding Principles on Business and Human Rights and take steps to
implement it within existing procurement systems.

Many public buyers and suppliers already have established risk management
systems that address, for example, financial risks, fraud, corruption, reputational
damage, and waste or inefficiency. Such measures are recommended as good
procurement practice, amongst others, by the OECD.74 Human rights due diligenceis a process to manage the risk to rights-holders of negative human rights impacts
from business activities, and to provide access to remedy when human rights
violations and abuses occur. Human rights due diligence should be integrated into
existing risk management processes and systems with a specific emphasis on therisk to rights-holders.

44DRIVING CHANGE THROUGH PUBLIC PROCUREMENT

Requiring suppliers to respect human rights is one way that a public buyer canmanage risk and maintain the integrity of the public procurement system. Suchrequirements also incentivise suppliers to implement their own human rights due
diligence processes.

Colombia Compra Eficiente, the governing body of the Colombia’s
Public Procurement System, published a Guide on Socially
Responsible Public Procurement in November 2018 which highlights
that:“Human right due diligence in the Public Procurement System reduces
the risk of human rights violations in the performance of contracts
and future legal actions, provides transparency to the processes
and contributes to sustainable development in social and economic
terms. Additionally, it allows suppliers to demonstrate that they took
all reasonable measures to avoid any participation in the violation ofhuman rights.”

Policy commitment
to human rights
Risk assessment/
assessment of impacts

Communicating &reporting

STAKEHOLDERENGAGEMENT&ACCESS TO REMEDY

Tracking & monitoring

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DRIVING CHANGE THROUGH PUBLIC PROCUREMENT

The table below provides an overview with examples of what human rights due
diligence could look like in practice for a public buyer.

Public buyers can:
Policy commitment

POLICY MAKERS

This step involves
developing andpublishing ahuman rights policy
commitment, whether
as an individual policy or
as a chapter within preexisting policies.

Risk assessment/
assessment of impacts
This step involves
assessing the risk ofhuman rights abuses
occurring within
operations and value
chains.

46

Public buyers can use procurement
exercises and contracts to:• Develop an internal policy• Require that suppliers provide
commitment on human rights
a human rights policy agreed ator integrate human rights policy
the highest management levelobjectives within existing policies;of the business, which is publicly• Share their human rights policy
available;• Require that a human rights
commitments with all relevant
policy addresses the full range ofstakeholders (including staff andinternationally recognised humansuppliers) and explain how theserights;work in practice;• Encourage de-centralised• Require that suppliers commit toprocurement bodies to adopt a policy
support their own suppliers, with acommitment on human rights.
focus on small and medium sizedenterprises (SMEs), to develop ahuman rights policy.
• Undertake a mapping exercise of• Require suppliers to provide a map
state value chains, beginning with theof their value chain or undertake
higher tiers, but moving in to lower
a mapping exercise should theytiers as the process is repeated;
not have this information. The• Train and support staff to understandlevel of the market and category ofand carry out human rights risk
contract will impact how extensive
assessments, and/ or establish a list
such requirements can be;• Require suppliers to identify andof consultants with expertise in risks
assess human rights risks. The
assessments;• Undertake human rights risk
public buyer could share someassessments for specific categories
basic information with actual andand types of procurement before
potential suppliers (including
going to tender, including stakeholder
information produced by others)
engagement (market testing, foron how to do this or develop their
example) to identify risks andown guidance for supplier asopportunities in related productsuppliers may be held liable forcategories and upcoming tenders.
their sub-contractors.

DRIVING CHANGE THROUGH PUBLIC PROCUREMENT

Public buyers can:Acting on the findings of • Develop a database of pre-selected
the risks assessment
requirements that actual andpotential suppliers respect humanThis step requires acting
rights which can be included withinon the findings of thedifferent types of procurement
risk assessment andexercises and contracts;
designing measures to• Establish a risk matrix to identify
prevent or mitigate thewhich procurement exercises
risks from becoming a
have greater risk of impacting
reality.
on individuals’ human rights
and therefore require greaterprioritisation.

Tracking and monitoring • Ensure access to an effective
grievance mechanism for victims (seeThis step requires
section B3.9 Remedy);
tracking and monitoring• Record statistics including on thethe effectiveness ofnumber of measures the public buyer
the measures taken to
has implemented to ensure suppliers
address the identified
respect human rights and the number
risks.
of human rights abuses the state has
been made aware of, investigated,
and remedied, and use these findings
to inform future requirements anddevelop key performance indicators
to monitor progress.

Public buyers can use procurement
exercises and contracts to:• Require suppliers to adopt
an action plan to address theidentified risks with specific,
measurable, achievable, relevant,and time-bound targets, and revise
these on a regular basis;• Provide support for suppliers todevelop and implement mitigation
measures through training
exercises, roundtable discussions,
websites, resources and guidance
documents, contact points, andsignposting to material producedby other buyers, for example.
• Require suppliers to establish agrievance mechanism so they canbe made aware of human rights
abuses (whether by the direct
supplier or its own suppliers);• Require suppliers to record
allegations of human rights
abuses made against them or their
suppliers and detail what actions
were taken to resolve these;• Include contractual measures
to require a supplier to act whenhuman rights abuses are identified,with penalties attached for noncompliance.

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DRIVING CHANGE THROUGH PUBLIC PROCUREMENT

Public buyers can:

POLICY MAKERS

Communicating andreporting• Highlight and explain thecommitment to human rights tostakeholders and articulate what will
This step requires
be expected of suppliers during thecommunicating howmarket testing stage;
human rights are• Publish key documents including
addressed as well as
standard contractual terms,
the real-life outcomes,
proposed procurement regulations,in an accessible,
risk assessment criteria, minutes
timely, and regularof meetings, contributions frommanner (for example instakeholders, and value chain
different languages andmappings;
with understandable• Include information in public
terminology), in
reporting exercises on the adopted
accordance with national
requirements that suppliers in theirlaws on transparency
value chains respect human rights,
and accountability.
the recorded human rights abuses
within the value chain and remedies
provided, and the resources dedicatedto realising these;• Input to reports to regional andinternational bodies (for example,
highlighting requirements that
suppliers respect human rights when
the state is reporting to UN humanrights mechanisms).

�48

Public buyers can use procurement
exercises and contracts to:• Require suppliers to publish
information on how they work withhuman rights such as a humanrights policy;• Require suppliers to report theiractions to the public buyer on aregular basis;• Require suppliers to include
information within their reports
such as an action plan to addresshuman rights risks, what issues
they have followed up on, whatabuses they have found, what
has been communicated withthe board and shareholders, forexample;Human rights requirements should encompass all operations
connected to the performance of the contract and should ensure thatthe fundamental terms are fulfilled by sub-contractors in all parts ofthe value chain.

DRIVING CHANGE THROUGH PUBLIC PROCUREMENT

Article 18(1) of EU Directive 2014/24/EU stipulates a principle ofproportionality, which means that the requirements, award criteria,
technical specifications, etc. must be proportional and linked to thesubject-matter of the public contract – the principle thus requires aninquiry into whether any measure exceeds what is necessary to achieve
for the procurement in question. Criteria are considered linked to thesubject-matter of the contract where they relate to the works, supplies
or services to be provided under the contract in any respect and at any
stage of their life cycle. These include factors involved in the specificprocess of production, provision or trading.
The requirement that criteria and conditions shall be linked to thesubject-matter of the procurement excludes however general corporate
policy, which cannot be considered as a factor characterizing thespecific process of production or provision of the purchased works,
supplies or services. This means that a contracting authority canrequire that all supplies which the authority purchases are produced inaccordance with, for example, Fair Trade labelling, but not that all the
supplies produced by the tenderer, including supplies not produced forthe contracting authority, shall be made according to such a standard.

DIGITALISATION, ARTIFICIAL INTELLIGENCE AND HUMAN RIGHTS
Digitalisation and artificial intelligence can be utilised to support the realisationof human rights in a large variety of ways. However, they also create risks ofnegative human rights impacts. Some risks related to the digitalisation of public
administration are clear, such as risks related to data management and sensitive
information. However, artificial intelligence and algorithms are introducing new
risks, such as the risk of discrimination through the use of automated sentencing
processes in criminal justice systems,75 and the algorithmic analysis of children
at risk of abuse.76 Smart cities and facial recognition raise a range of human rights
risks which are beginning to be explored.77

B3.3 ENSURING COHERENCE IN IMPLEMENTATIONFIRST STEPS• Establish a human rights working group with members from thedifferent teams and departments working across the procurement
cycle to design an approach tailored to the local environment;• Seek political, management and team buy-in to facilitate work withhuman rights requirements;• Mobilise existing induction, training, management, evaluation andbudget systems to build competence in human rights due diligence.

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DRIVING CHANGE THROUGH PUBLIC PROCUREMENTLEGAL AND POLICY COHERENCE
In most states, officials responsible for procurement policy and practice will belocated elsewhere from officials responsible for human rights, sustainability or
environmental matters. This makes it crucial to deploy deliberate efforts to promote
coordination across the state when establishing human rights requirements in the
procurement context. This can begin with joint trainings, dialogue and engagement
during policy design and training design phases, and the distribution of key contact
directories, for example. A human rights working group with members drawn fromrelevant state bodies, at central and local state levels, can be established to support
the development and roll-out of supplier requirements.

POLICY MAKERS

The Dutch government procures around €73.3 billion of work,
services and supplies every year, with most of this expenditure at local
level. To stimulate the market for sustainable products, the central
government, together with regional and local authorities establishedan organisation called PIANOo. PIANOo works to professionaliseprocurement and tendering in all government departments, with a view
to improving efficiency and compliance with the rules, and train publicbuyers on criteria and practical instruments to implement Sustainable
Procurement within their organisations.

The Directorate of ChileCompra, the central procurement body in Chile,
publishes directives in which recommendations are given to publicbuyers on how to make public purchases under certain sustainability
guidelines:• Directive No. 13. Instructions for making sustainable contracts in the
Chilean public market;• Directive No. 17. Instructions for carrying out inclusive public
contracts that promote equal opportunities in the public market;• Directive No. 20. Gender approach to public procurement;• Directive No. 23. Guidance on payment to suppliers in public
procurement processes.

Responsibilities for the procurement of goods and for contract management often
sit with different teams and individuals. As such, the procurement team is unlikely
to be involved in the day-to-day execution of the contract. It is important to ensurethat the contract management team has the capacity and knowledge to ensure thehuman rights requirements are met and provide feedback to the procurement teamto improve future requirements.

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DRIVING CHANGE THROUGH PUBLIC PROCUREMENTIn Sweden, the City of Malmö has developed a working process forsustainability coordinators and procurement officers to secure thesustainability perspective throughout the procurement project. The
process identifies the different elements in a procurement process,starting with the needs assessment and ending with the closure of
the contract, and concretises the role of the sustainability coordinatorin relation to each element. This process has resulted in methodical
working routines based on strategic sustainability considerations, rather
than, for example, individual personal commitments by employees,
which makes the overall system vulnerable to staff turnover.78

COHERENCE ACROSS SYSTEMS
Many public buyers and suppliers already have strategies, action plans, codes ofconduct, performance monitoring, checklists, and evaluation systems in place
relating to the environment, social, and economic aspects of public procurement.
For instance, some buyers have codified environmental requirements for theirprocurement. Suppliers may have quality control audit regimes in place tominimise defects in their production process for all clients. Many public buyers
and suppliers also have established risk management systems. Where possible,
human rights due diligence should be integrated into such structures. Minimising
redundancies across systems has the dual benefits of reducing up-front costs, andminimising supplier and sub-contractor burdens, thereby contributing to greater
overall efficiencies.

© Tim Gouw, Unsplash

Certain requirements that actual and potential suppliers respect human rights canbe simple to measure (for example, does a supplier have a human rights policy?).
Verifying other human rights requirements requires more sophisticated indicators
and analysis (for example, does the supplier’s human rights policy address thefull range of human rights? Are the measures to mitigate risk effective?). Systems,
such as e-procurement platforms, may allow human rights indicators and analysis
to be incorporated in the procurement process. They can also provide a consistentplatform through which buyers can exercise their judgment and make decisions
based on qualitative data.

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DRIVING CHANGE THROUGH PUBLIC PROCUREMENT

B3.4 SUPPORTING PROCUREMENT PERSONNEL

POLICY MAKERS

FIRST STEPS• Begin with pilot projects to build knowledge and capacity gradually,
spot challenges, capture learnings and generate team confidence
before a wider roll-out;• Develop internal policies with guidance and training to provide
clarity and help manage expectations on what can be achieved andwhat is required of staff, accompanied with training and capacity
building;• Gather good practices and lessons learned and make themaccessible across teams;• Talk to other public buyers and adapt successful elements ofapproaches from elsewhere.

According to the UNGPs, “States should ensure that governmental departments,
agencies and other State-based institutions that shape business practices are awareof and observe the State’s human rights obligations when fulfilling their respective
mandates, including by providing them with relevant information, training andsupport.”79
This is important for public buyers as they need to have sufficient knowledge about
the market and potential risks, as well as the capacity to evaluate tenders in a fair
and transparent manner. Without this, there is a risk of actual or potential suppliers
initiating legal challenges to the procurement process if they feel it has been unfair,or simply declining to participate in tenders due to uncertainty over their terms.
If a public buyer has codes of conduct, performance monitoring, checklists, andevaluation systems in place, human rights considerations should be transparently
integrated into them.
Information, training and support through tools, guidance, peer-to-peer supportand mentoring are vital to help staff comprehend new concepts and requirements
when including human rights requirements. E-learning solutions may be the mostcost-efficient option for larger workforces. To promote accessibility to learners andeasy-updating, human rights content should ideally be integrated into existing
training formats and materials. Piloting of any new instructional human rights
materials is also recommendable.

The Geneva Centre for the Democratic Control of Armed Forces(DCAF) has developed A Contract Guidance Tool for Private Military
and Security Services which includes practical examples and clauses
public buyers can include as pre-award measures and post-award
measures.

52

DRIVING CHANGE THROUGH PUBLIC PROCUREMENTThe Scottish government has developed a range of public procurement
tools including:• A Flexible Framework Assessment Tool which helps public buyers
determine and implement actions to embed good procurement
practice and realise intended outcomes by completing questions
which generate an action plan;• A Prioritisation Tool which helps public buyers identify relevant
economic, environmental and social, and human rights
considerations, focusing on identifying and assessing risk andopportunities, categories, and spend;• A Sustainability Test which helps public buyers embed relevant andproportionate sustainability requirements in the development ofcontracts and frameworks;• A range of guidance on specific issues including climate change,materials, waste, equality, fair work, fairly and ethically tradedproducts, health and safety.

In the USA, the State Department, in conjunction with the NGO Verité,
provides resources and tools to assist United States federal contractors,
procurement officials, and other companies to identify, prevent, andaddress the risks of human trafficking in their global supply chains,
and to develop effective risk-management systems. The Responsible
Sourcing Tool (RST) includes an in-depth examination of eleven key
sectors and 43 commodities at risk for human trafficking or traffickingrelated practices. RST includes ten comprehensive risk-management
tools; and tailored tools for the seafood sector and for the food andbeverage sector. The tools include items such as:• A sample code of conduct;• A sample vendor agreement;• A tool on screening and evaluating labour recruiters;• A sample supplier and sub-contractor self-assessment;• A tool on conducting migrant worker interviews; and• A sample compliance plan for the U.S. Federal Acquisition
Regulation on Ending Trafficking in Persons.
The United States Department of Defense and Homeland Security havealso developed specific trainings on combating human trafficking.80 In
2019, the United States Office of Management and Budget released
an Anti-Trafficking Risk Management Best Practices & Mitigation
Considerations Memorandum describing best practices, resources, andrisk mitigation techniques that government contracting officers canuse to help contractors meet their responsibilities under the Federal
Acquisition Regulation.

53

© Steve Jurvetson

DRIVING CHANGE THROUGH PUBLIC PROCUREMENTPOLICY MAKERS

In 2017 the London Universities Purchasing Consortium, University ofGreenwich, and the Chartered Institute of Procurement and Supply
produced Protecting human rights in the supply chain, A guide forpublic procurement practitioners.

A 2019 UK policy note on Tackling Modern Slavery in Government
Supply Chains sets out how UK Government departments must takeaction to ensure modern slavery risks are identified and managed ingovernment supply chains and is tailored specifically for commercial
and procurement professionals with check-lists and questions to
consider. The UK has also developed a Modern Slavery Assessment
Tool to “help public sector organisations work in partnership with
suppliers to improve protections and reduce the risk of exploitationof workers in their supply chains. It also aims to help public sector
organisations understand where there may be risks of modern slavery
in the supply chains of goods and services they have procured.”

The Association of Flemish Cities and Municipalities and the City of
Ghent (Belgium) published a guide for public purchasers on socially
responsible workwear in 2018 which highlights existing labels andcertificates public buyers can utilise and provides a process which
public buyers can follow to realise socially responsible procurement.

Staff will need technical support and platforms to incorporate human rights
into existing information systems, templates, decision protocols that rely on in
the ordinary course of their work. Even if integrating human rights into existingprocurement infrastructure usually presents the most cost-effective option, it still
implies non-negligible costs associated, for instance, with modifications to large
IT systems, making the issue of resources an essential topic (see Section B3.8
Resources).
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DRIVING CHANGE THROUGH PUBLIC PROCUREMENT

B3.5 SUPPORTING SUPPLIERS AND MARKET DIALOGUEFIRST STEPS• Use the market testing stage to identify how knowledgeablesuppliers are about human rights risks, what measures they
currently apply, and how they would respond to new requirements;• Provide user-friendly guidance and training for suppliers andpotential suppliers with practical examples of how to addresshuman rights risks.

Applying supplier requirements aims to ensure respect for human rights in the
public supply base. It is not intended to exclude or limit supplier access to public
procurement contracts unnecessarily or permanently. To ensure that suppliers areable to improve so they can meet buyers’ human rights requirements, the UNGPs
highlight that states should provide guidance, tools and training for businesses on
how to respect human rights and perform effective human rights due diligence.81
The market testing stage provides an opportunity for public buyers to engage
suppliers to see what type of support they require and highlight to the market their
expectations.
Including requirements that suppliers respect human rights can be applied to firsttier suppliers and then cascaded down to sub-contractors both at home and abroad.
Guidance and support can be tailored to meet the differing needs of suppliers
throughout the value chain (for example, lower tiers in the value chain may include
more SMEs with different needs to those of multi-national enterprises).
Support for suppliers should also reflect how demanding given requirements are forthe suppliers and their sub-contractors. Some sectors and some businesses, such as
SMEs, may require more support. Such support could include, for example, adopting
minimum time-periods to allow SMEs, which may not have the same experienceand capacity as larger businesses, to submit tenders. It could also include providing
an unsuccessful supplier with an explanation of the reasons why its tender was notselected, and the relative advantages of a successful supplier’s tender.82

The Netherlands has a responsible business conduct team (RBC)
within the Ministry of Foreign Affairs which works to stimulate Dutch
businesses to follow international guidelines on responsible businessconduct, in particular the OECD’s Guidelines for Multinational
Enterprises and the UNGPs. The RBC team uses International
Responsible Business Conduct Agreements, which are partnerships
between businesses, NGOs, trade unions, and governments, tostimulate businesses in a given sector to avoid and address humanrights and environmental issues in international value chains.

55

DRIVING CHANGE THROUGH PUBLIC PROCUREMENTThe Danish Ministry of Business and Growth and the Confederation ofDanish Industry has developed guidance for business on responsible
supply chain management. This guidance does not target public
procurement specifically. However, it does provide orientation on how tomanage suppliers that is relevant for public purchasing. Furthermore,a coalition of Danish state actors produced an online portal withinformation for responsible public buyers. In 2019, Denmark’s National
Contact Point under the OECD Guidelines for Multinational Enterprises,
and the Danish Institute for Human Rights, produced a reporthighlighting how municipalities and other public purchasers can act
with respect for human rights in public procurement.

B3.6 ENGAGING STAKEHOLDERS

POLICY MAKERS

FIRST STEPS• In addition to market testing for suppliers, consider ways to get
feedback from other relevant stakeholders, such as supplierassociations, workers, worker organisations, civil society actors,
end-users/ service-users, as well as communities which have been
impacted, or are potentially impacted by human rights abuses in thestate’s value chain.

© Anton Atanasov

A stakeholder is a person, group or organisation with an interest in, or influence on,a business project or activity, as well as those potentially affected by it.83 It is
important to engage stakeholders in the design of systems which affect them andallow wide access to public procurement information to ensure transparency.84
Public procurement has both internal and external stakeholders.

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DRIVING CHANGE THROUGH PUBLIC PROCUREMENT

Types of stakeholders
Internal stakeholders include staff who will beworking with the design and implementation
requirements that suppliers respect humanrights. This may include:

INTERNALSTAKEHOLDERS- Staff from different parts of the government,
including various departments or ministries(for example, justice or human rights);- Staff from different levels of the state (forexample, regional and local government);- Staff from oversight entities;of government (for instance, legislative andjudicial).

External stakeholders may include:- Suppliers (including potential suppliers)
and supplier associations;- Workers and worker organisations;- Human rights advocates and other civilsociety actors;- Communities which have been impacted,
or are potentially impacted by human rights
abuses in the state’s value chain;

EXTERNALSTAKEHOLDERS? ?

- End-users and service-users.

In many states, public procurement and human rights issues will be new to many
stakeholders. Where this is the case, stakeholders will need to be informed ofthe process to requirements that suppliers respect human rights and be provided
with opportunities to share their opinions. This can be achieved through online
dialogues or webinars, in-person workshops, consultation exercises and receiving
written submissions. Stakeholders, may require capacity-building to allow them toparticipate effectively and contribute meaningfully to the formulation of effective
requirements.

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DRIVING CHANGE THROUGH PUBLIC PROCUREMENT

In 2014, the City of London established a social value panel consistingof representatives of local business, community and environmental
sectors. The panel is presented with proposals from the procurement
team on requirements that suppliers address the economic, social andenvironmental impacts of relevant contracts and engages in an open
dialogue on these proposals. The procurement team incorporate thepanel’s suggestions and reports back regularly to the panel on themeasures taken.

In 2014, the Dominican Republic enacted Law 188-14 establishing
Citizen Oversight Commissions to:

POLICY MAKERS• Observe and monitor the procurement and contracting processes of
all the 24 state institutions engaging in public procurement;• Receive reports, observations, complaints and suggestions fromsuppliers, citizens and organisations;• Collect evidence of corruption and illegal activity linked to the
procurement and public procurement processes;• Present follow-up reports with observations, assessments andfindings on public procurement processes and practices observed,
which should be disseminated;• Recognise and disseminate good practices so that they can be
replicated.

B3.7 CONTINUOUS EVALUATION AND LEARNING

Continuous evaluation and learning is a critical concept.85 Human rights abusesin the global value chains of most public buyers and higher tier suppliers arewidespread and dynamic, changing with many factors, including labour migration
patterns, legislation and policy developments. Identifying and abating a single
abuse or structural concern, moreover, does not necessarily prevent a recurrenceor the emergence of other human rights issues in future. It is therefore vital thatmonitoring and control systems are continuously activated to re-check compliance,
and that they evolve and improve to achieve better results over time. Continuous
learning is also supported by regular identification and sharing of good practices
and challenges faced by public buyers. Monitoring, evaluating, learning andupdating should always be ‘work in progress’.

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DRIVING CHANGE THROUGH PUBLIC PROCUREMENTElectronics Watch supported the Swedish Regions in reviewing their IT
contractor and sub-contractors in light of alleged human rights abuses
within their value chain. This was published as a case study which“contains valuable lessons for other public sector buyers that seek toensure compliance with international labour rights standards in theirglobal supply chains by holding contractors accountable for any failure
in investigating and addressing labour rights violations.”

B3.8 RESOURCESFIRST STEPS• Consider a small-scale pilot project to test requirements andcalibrate budgetary estimates.

It is a plain reality that the level of resources allocated to designing andimplementing human rights requirements will impact on their effectiveness.
Some efficiencies may be captured by using standardised, digital or web-based
approaches (for example, electronic supplier check-lists), but such tools also
require up-front investments in the human rights knowledge of their developers.
In-depth, on-site qualitative supplier assessments, important for monitoring ofcompliance with contract clauses, for example, also require the involvement oftrained staff.
Securing sufficient resources for tools and training is a routine challenge for public
procurement bodies. Yet, introducing human rights requirements without sufficient
preparation or resources carries its own legal, economic, and reputational risks, asseen above (see Section C4.1 Supplier performance monitoring).

The Swedish Regions model has three full time staff working onsustainable public procurement (two working on the environment andone on human rights) and a budget of 5 million Swedish krona perannum (€470,000) for human resources and follow-up activities suchas audits. The budget is provided by the 21 Regions which contribute
50 Swedish cents per inhabitant. There are eight regional co-ordinators
and a contact person at each of the 21 Regions. Region Stockholm in
addition employs one full-time person as regional coordinator, whereas
other Regions have allocated hours for existing staff.

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DRIVING CHANGE THROUGH PUBLIC PROCUREMENTPOLICY MAKERS

In Norway all procurement exercises for hospitals are undertaken by anorganisation called Sykehusinnkjøp (Norwegian Hospital Procurement).
The sustainability unit has four people who work with environmental
issues, anti-corruption, human rights and workers’ rights. The budget
for the sustainability unit is approximately 6 million Norwegian kroner
per annum (€560,000). The Norwegian Hospital Procurement isdivided into six divisions and every division has a contact person/
coordinator for sustainability work.

The City of London is modifying the Swedish county councils’ Codeof Conduct to the UK context by including incorporating references
to relevant UK legislation, such as the Modern Slavery Act 2015. The
City of London will then share this with the other London municipal
authorities for their use. This will increase the leverage of government
buyers across London and increase their ability to apply and enforce
requirements that businesses respect human rights within their value
chain.

B3.9 REMEDYFIRST STEPS• Map internal grievance/ feedback mechanisms, identify who
can access them (for example, staff, contractors, suppliers, subcontractors and other relevant external stakeholders) and for whichtypes of grievances/ feedback.

Human rights abuses can occur at different stages in a value chain, and publicpurchasing bodies should consider establishing an internal grievance mechanism
to provide remedy to victims, wherever in the value chain they are found, in line with
the UNGPs.86 Grievance mechanisms for victims are important risk management
tools as they allow public buyers to become aware of, and address, human rights
abuses at an early stage, prevent ongoing abuses and help prevent abuses from reoccurring.

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© Christopher Burns, Unsplash

DRIVING CHANGE THROUGH PUBLIC PROCUREMENT

Advantages of an internal grievancemechanism• It can provide a direct route to remedy
for victims without requiring themto engage in more formal and costly
judicial remedy processes;• It provides an early warning system
so that human rights abuses can beaddressed and prevent ongoing or
escalating abuses;• It provides valuable information on
actual risks and abuses in a sector,
geography, or value chain which
can inform future risk analysis andmeasures to address identified risks.

Limitations of an internal grievancemechanism• It may require new legislation or
institutional policy to establish amandate for the mechanism where
public buyers are concerned;• An effective internal grievancemechanism requires resources anddedicated staff capacity;• It is unlikely that workers at lower tiersof the state’s value chain will haveknowledge of the existence of the
public buyer, let alone its grievancemechanism.

Grievance mechanisms should be open to employees of suppliers, sub-contractors,
individuals and communities impacted by actual or potential human rights abuses,and end-users/ service-users, including civil servants using procured goods
and services. Internal grievance mechanisms should not prevent victims fromaccessing legal remedies. Effective remediation of abuses can involve providing
victims with reparation including compensation, cessation of any on-going abuseor violation, disciplinary actions or punishment against those responsible, access torelevant information, public disclosure of the truth, guarantees of non-repetition,
rehabilitation, an apology or public memorials.

The London Organising Committee of the 2012 Olympic andParalympic Games established a Sustainable Sourcing Code in 2008,
carried out audits to ensure compliance, and established a complaint
mechanism to address alleged violations of the sourcing code. An
Ergon report details how this grievance mechanism operated.

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DRIVING CHANGE THROUGH PUBLIC PROCUREMENTThe Tokyo Organising Committee of the Olympic and Paralympic
Games (2020) developed a Sustainable Sourcing Code, and codes
specific to timber, agricultural products, livestock products, fisheryproducts, paper, and palm oil. They have designed a grievancemechanism to receive reports of non-compliance of the sourcing code,investigate, facilitate dialogue, formulate resolutions, and require
improvement measures. Information on the grievance mechanism isavailable in languages used in the region.
In 2019 the International Olympic Committee developed an Olympic
Games Guide on Sustainable Sourcing highlighting the importance ofgrievance mechanisms and that they align with the UNGPs.87

POLICY MAKERS

The three delivery partners for the Fifa World Cup Qatar 2022 haveadopted a sustainability strategy. This includes an objective to “[e]nable
access to effective remedy for workers engaged in the constructionof, and provision of services for, FIFA World Cup 2022™ sites”. A key
initiative to realise this objective is an operational-level grievance andremedy mechanism:“Continuing the implementation and enhancement of the [Supreme
Committee for Delivery & Legacy]’s grievance and remedy mechanisms
and considering expanding their scope or developing parallelmechanisms to be accessible to all future workers engaged in theprovision of services for FIFA World Cup 2022™ sites, including during
the staging of the tournament. Such mechanisms will follow guidancefrom the effectiveness criteria of UN Guiding Principle 31. This initiative
will include:• Ensuring that workers are aware of the mechanisms and related
avenues for complaints• Engaging with the relevant stakeholders and those affected to assess
complaints• Striving to use our leverage with any third parties involved to address
and remedy adverse impacts• Seeking cooperation with other institutions and organisations with arelevant mandate that may help to effectively address and remediate
specific cases• Addressing complaints raised in adequate ways, recognising the needfor context-specific and timely solutions• Reporting on the mechanisms’ performance in a meaningfulmanner”

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C
GUIDANCE FOR PROCUREMENT
PRACTITIONERSThis section is primarily designed for procurement practitioners – in other words,
personnel with responsibility for procuring goods and services and for contract
management. The objective of this section is to:• Explain how requirements that suppliers respect human rights can be included ateach stage of the procurement process;• Provide examples of how this has been done in practice;• Highlight the advantages and limits of including requirements that suppliers
respect human rights at the different stages of the procurement process.
Given variations between national public procurement regimes, this section is
structured to follow the most common stages of public procurement:

C1

Pre-tenderplanning

C3

Post-award
measuresC2

Pre-award
measures

C4

Contractmanagement

C1
C1.1
C1.2
C1.3

Pre-tender planning
Human rights risk identification and assessment
Market testing and engagement
Increasing leverage

64
64
71
74

C2
C2.1
C2.2
C2.3
C2.4
C2.5

Pre-award measures
Exclusion grounds
Technical specifications
Selection criteria
Contract award criteria
Notice to suppliers

75
76
78
80
81
85

C3
C3.1
C3.2

Post-award measures
Conditions for performance of contracts
Sub-contracting

86
88
92

C4
C4.1
C4.2
C4.3
C4.4

Contract management
Supplier performance monitoring
Supplier reporting
RemedyEnforcement and termination of contracts

96
97
103
107
109

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DRIVING CHANGE THROUGH PUBLIC PROCUREMENT

Public procurements are commonly segmented into three types: i) goods (supplyof products); ii) services; and iii) works (construction). The scope of goods andservices bought by public authorities ranges widely, from multi-billion infrastructure
and urban development projects, to the acquisition of complex items such as
weapon systems, to commissioning of essential public services in the health andsocial care sector, to buying common goods such as stationery, furniture, andfoodstuffs. This section highlights supplier requirements on human rights that canbe included in most categories and types of public procurements. The term publicbuyer in this section is a reference to public procurement bodies and to individuals
with responsibility for the procurement of goods and services and for contract
management.

PRACTITIONERSThe approach outlined in this section should be balanced against the everyday
practicalities encountered by procurement practitioners. For example, for somebuyers, there may only a few procurement exercises per year where it is possible
to consider including human rights requirements, whether due to the size of
expenditure, type of product or service being bought, staff capacity or otherconsiderations.
Overall, this section describes a comprehensive or ‘360-degree’ approach tointegrating human rights into public buying. It is recognised that applying this in its
entirety may not be practically viable for practitioners new to the topic who rather
need to identify an accessible entry point or ‘first steps’. Consequently, each section
contains a box highlighting ‘first steps’. In addition, the measures suggested should
be tailored to the local context and be tested initially on a pilot basis.
C1. PRE-TENDER PLANNING
It is essential to include human rights in pre-tender planning if human rights
requirements are to be included at subsequent stages of a procurement process.
This section is structured around three components of pre-tender planning:C1.1 Human rights risk identification and assessment
C1.2 Market testing and engagement
C1.3 Increasing leverage
C1.1 HUMAN RIGHTS RISK IDENTIFICATION AND ASSESSMENT

FIRST STEPS• Map the top tiers of your value chain for upcoming large-scaletenders;• Use public data to see if there are reports of human rights issues
for geographic regions, countries, sectors, or specific businesses
relevant to your tender;• Select an upcoming tender with high risks to use as a pilot project.

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DRIVING CHANGE THROUGH PUBLIC PROCUREMENT

The first step in including human rights requirements in a procurement is to identify
and assess the risks of negative human rights impacts occurring in relevant value
chains. Once these risks are identified and assessed, measures to encourage
suppliers’ respect for human rights can be selected and included in different stagesof the procurement cycle to try and prevent these risks from becoming realities.
To assess human rights risks in value chains, it is necessary to discover whether
there are human rights abuses associated with the goods and services to be
procured. This requires identifying the relevant risks associated with specificgeographic regions, countries, sectors, or individual businesses. Certain risks
are common to sectors or geographic regions. Such risks are likely to have beenhighlighted previously by other actors. For example, it is well documented thatgarments production in South East Asia is associated with risks of child labour,
modern slavery and other labour rights abuses.88© The Closure Library Authors�

RISKS AND IMPACTS
The terms ‘risks’ and ‘impacts’ are often used interchangeably. However,
the term risk has different meanings for different audiences. In abusiness context, risks are often understood from the perspective ofrisk to business (for example, damage to profitability, reputational
damage). In a human rights context, however, discussion of both
impacts or risks focuses on risks of harm to the human rights of anindividual or group as the rights-holder (for example, being a victim offorced labour, suffering discrimination or harassment, losing your landor means of livelihood).

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DRIVING CHANGE THROUGH PUBLIC PROCUREMENT

PRACTITIONERS

A risk assessment can be done through desk research. Alternatively, it can be an
in-depth analysis undertaken via field research, where needed and if resources andcapacity allow. Risk-assessment during the procurement planning stage should
be broad in scope, as risks in other areas can also impact on human rights (forexample, the environment and corruption).
Human rights risk assessment in the public procurement context should:• Be based on international human rights standards and address all human rights;• Be an ongoing process;• Focus on actual and potential adverse human rights risks;• Identify the human rights risks applicable to suppliers and down to the end of thevalue chain;• Consider the aggregative or cumulative effect on human rights where multiple
business have similar operations in the same area (for example, cumulative water
use can lower the water table which impacts on farming);• Focus on the human rights risks to individuals and groups rather than risks tothe procuring body, the state body it is responsible to, or its suppliers. Suchindividuals or groups can include the end-users/ service-users (especially where
essential public services are being provided by a supplier),89 the contractor’s staff(i.e. the first tier of the value chain for the procurement authority), and workers
further tiers down the value chain;90• Look at risk across the full life-cycle of goods and services, including raw
materials production, manufacturing, transport, service delivery, and end-of-life
disposal;• Involve meaningful consultation with potentially affected groups and otherrelevant stakeholders as appropriate to the size of the procurement process andthe practicalities of international value chains;• Be gender-sensitive and pay attention to human rights impacts on individuals
from other groups that may be at heightened risk of vulnerability or
marginalisation, such as migrant workers, persons with a disability and children;• Consider risks to the environment that may have consequences for human rights(for example, pollution of waterways, localised air pollution, loss of biodiversity or
habitat destruction affecting livelihoods).
Practical tools and guidance such as the following can help procurement
professionals identify and assess risks:• The Difi High Risk List contains information on so called high risk products;• The CSR Risk Check tool contains information on risks throughout the value
chain;• The Children’s Rights and Business Atlas provides country-by-country data onchildren’s rights related to the workplace;• The Responsible Sourcing Tool helps identify human trafficking in the value
chain;• Human Rights and Business Dilemmas Forum provides case studies on how toaddress human rights risks;

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DRIVING CHANGE THROUGH PUBLIC PROCUREMENT• The Business and Human Rights Resource Centre publishes a wide variety of
information which can help inform risk assessments;• The Swedish National Agency for Public Procurement’s sustainable procurement
criteria library provides examples of social requirements.

The Northern Ireland Department of Finance produced a guidance notein December 2018 which lists questions to consider when assessing
the risk of negative human rights impacts occurring in procurement
processes focusing on risks to specific groups: end users, thecontractor’s staff, and staff working for suppliers below the first tier.

A risk assessment can address a specific procurement exercise or groups ofsimilar procurements. Some public buyers pool their resources in order toundertake joint risk assessments. In some cases it may be possible to access risk
assessments performed by other organisations, though when using such materials,
account should be taken of the fact that human rights risks vary with changing
circumstances on the ground, and might need to be updated.

The US General Service Administration’s Sustainable Facilities Tool
includes guidance for public buyers on identifying risks in specificsectors. The tool provides public buyers with a list of sources that canbe consulted to determine whether and what risks may exist in specificsectors for procurements.

Risks should be addressed according to the severity of their human rights
consequences. All human rights are of equal importance and there is no list of‘priority’ human rights. The purpose of establishing severity is therefore not toestablish which risks need to be addressed, but to determine the order in which theidentified risks should be addressed, if they cannot be addressed simultaneously.91
To determine how severe a human rights risk is, you need to know its scope(number of people affected), scale (seriousness of the impact) and whether itis ‘remediable’ or not (can an individual impacted by the risk be restored to atleast the same, or equivalent, situation as before the adverse impact occurred?).
Thus assessing severity may require inputs from experts, dialogue with rightsholders, consideration of whether a particular impact gives rise to others (forexample, low adult wages can force families to rely on child labour) and longterm consequences (for example, workplace injuries are associated with negative
economic consequences not just for affected workers but also their families).92 Theseverity and type of risks in question will influence what requirements are required
to mitigate the risk across the procurement lifecycle.

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DRIVING CHANGE THROUGH PUBLIC PROCUREMENT

PRACTITIONERS

Some questions procurers can ask themselves that can help identify more severe
human rights risks include:• Is the value chain completely mapped? Are all sub-contractors known? Do subcontractors regularly change?
• Are there known actual or potential human rights issues in the value chain,based on reports on human rights abuses according to country, sector or specificbusinesses? Or based on links to known-high risk areas, such as conflict and postconflict zones?
• Do the products or services procured rely on high risk forms of labour, such as
manual labour, mass production, home production, use of hourly, unorganised,migrant, unskilled or seasonal labour?
• Does the nature of any activity, including production, delivery, and disposal ofgoods or services procured, anywhere in the value chain, create a heightenedrisk of human rights abuses for workers, end-users/ service-users or the public?
For example, will workers come in to contact with harmful chemicals in the
production or disposal of a product? Will workers in the value chain transportcommodities through conflict zones? Does the value chain generate waste, forinstance electronic waste, which if not disposed of properly may result in harm tohuman health or the environment?
• Do goods or services procured carry inherent risks? For example, are security
guards employed who carry firearms? Are individuals’ sensitive personal data
gathered and stored?
Public buyers must be aware that certain business requirements, practices orcontract terms imposed on suppliers by the public buyer can increase the risk ofhuman rights abuses occurring in the value chain. For example, delayed or latepayments, retention fees, orders for large volumes at short notice and ‘just-in-time’orders can directly lead to abuses of workers’ human rights, via excessive hours,‘lock-ins’ and increased workplace injuries.93 Such factors should be integrated intoa human rights risk assessment.

The UK’s 2019 policy note Tackling Modern Slavery in Government
Supply Chains outlines steps to be taken by government departments
to identify and manage modern slavery risks in government supply
chains. The note relates modern slavery risks to type of industry, natureof workforce, supplier location, context in which the supplier operates,
commodity type and business or supply chain model.

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DRIVING CHANGE THROUGH PUBLIC PROCUREMENT

Procurement exercises carrying higher risks of human rights abuses need to beprioritised to prevent abuses occurring. The size of the procurement exercise, interms of spend, is also relevant as larger procurement exercises usually represent agreater chance to exercise leverage over the market. Hence, grouping procurement
exercises together, by increasing overall spend, tends to make human rights
requirements on suppliers more effective.
The following table categorises procurement exercises according to the risk ofhuman rights abuses occurring and the size of the procurement exercise.

Low spend
Medium SpendHigh Spend

Low humanrights risk
Category A
Category B
Category C

Medium humanrights risk
Category B
Category C
Category D

High humanrights risk
Category C
Category D
Category E

Procurement exercises which fall in the high or medium risk categories should beprioritised for stronger human rights requirements than those attracting a low risk
designation.
Public buyers can establish a database with standard clauses on human rights
requirements. Standard clauses can be developed in-house or based on goodpractices shared by other public buyers. Standard clauses should be tailored toeach procurement exercise, according to the human rights risks identified. Risk
categorisation can be a basis for deciding whether to make standard clauses
discretionary or mandatory for a given procurement. Geography, sector and market
maturity should also be considered when customising standard clauses to a given
procurement exercise.

�Establishing a risk categorisation scheme and database of standard
clauses on human rights requirements allows procurers to share goodpractices, ensures a coherent approach which is not overly burdensome,and guards against loss of in-house knowledge with staff turnover.

In Sweden, the National Agency for Public Procurement provides a
free of charge sustainable procurement criteria library. The library
includes draft environmental and social requirements that can be used
when purchasing goods, services and works, according to a three-level
scheme: basic, advanced and very advanced (‘spearhead’).

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DRIVING CHANGE THROUGH PUBLIC PROCUREMENTThe Scottish government has developed a Prioritisation Tool whichhelps public buyers identify economic, environmental and social
considerations for procurements. The tool supports buyers to identify
and assess risk and opportunities based on categories and spend. In
addition, a Sustainability Test helps public buyers embed relevant
and proportionate sustainability requirements in the development ofcontracts and frameworks. Both tools were updated in September 2018
to take account of the UNGPs as well as risks of modern slavery andhuman trafficking.

Sweden’s municipal districts and Regions have collaborated to allocate
responsibility for performing human rights due diligence in relation
to a range of goods and services (for example, medical supplies). The
results of such due diligence exercises are then shared collectively.
In 2010, Sweden’s City of Malmö conducted a risk analysis, segmenting
spend categories by high, medium and low risk for abuses relating to
supply chain working conditions. Three product groups were identified
as high-risk: electronic equipment, furniture and office materials.
Follow-up measures, such as implementing a Code of Conduct to besigned by suppliers of goods, were based on this assessment.94
PRACTITIONERSIn 2020, the City of Malmö is introducing a scheme to analyse
procurement exercises through a sustainability filter. The goal is toprioritise procurement exercises with the greatest environmental andsocial impact. Prioritised procurement exercises receive a special focus
from sustainability coordinators. Such procurement may be subjectedto advanced pre-tender, post-tender, and contract award requirements.
Besides rating procurement exercises by potential risk, they are also
rated by how many of the city’s environmental and social goals theytarget.
As an example, one of Malmö’s environmental goals is to createa cleaner and more silent city. A procurement exercise related totransport will get a higher rating on the list of prioritised procurement
exercises if it contributes to realising this goal. The scheme takes into
consideration a procurement’s economic value as well as scope forpositive impact. Where leverage is higher to influence the market,
projects are also ranked higher on the list of prioritised procurement
exercises.95

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C1.2 MARKET TESTING AND ENGAGEMENTFIRST STEPS• Incorporate a session on human rights in market testing exercises
to gain an understanding of the maturity of the supplier base; toidentify areas where progress can be achieved immediately, andthose where change will take more time;• In addition to market testing for suppliers, consider ways to get
feedback from other stakeholders, such as supplier associations,workers, worker organisations, civil society actors, end-users/
service-users, as well as communities which may be impacted byhuman rights abuses in the state’s value chain.

© ILO Asia-PacificMarket testing is an important mechanism for hearing the market’s reaction to
the inclusion of human rights requirements. It allows public buyers to gain anunderstanding of the maturity of the supplier base, to identify areas where progress
can be achieved immediately, and those where change will take more time. If
buyers set requirements that are too demanding, no or few suppliers may answer
a call for tender – or suppliers may commit to terms that they cannot deliver. On
the other hand, if requirements are set too low, this human rights risks may not
be adequately addressed, while it may also fail to create a level playing field. (seeSection A1. Reasons to act).

71DRIVING CHANGE THROUGH PUBLIC PROCUREMENT

Early engagement with suppliers is especially important when a procurement
involves new supplier requirements that have not previously been tested on
suppliers. It is also important when requirements may entail significant changes tosuppliers’ business operations, or when suppliers may be uncertain how to comply
with the requirements.

PRACTITIONERSAdvantages of market testing and early Limitations of market testing and early
engagement
engagement• Market testing and early engagement • Market testing can provide
can ensure human rights
engagement with first tier and higher
requirements align with relevant
tier suppliers, but often does notsectors, markets, and geographies;
engage with lower tier suppliers,• It can help gauge the market’s
especially those abroad;reaction and designing human rights • Suppliers may be reluctant tosee more advanced human rights
requirements which are effective but
requirements, so buyers should
sensitive to market concerns at theensure they are well informed andoutset;• The market’s knowledge can beprepared to respond to supplierutilised to identify common orquestions to facilitate a constructive
increased human rights risks in a
dialogue.
sector or geography that should be
addressed;• It allows for the early identificationof human rights risks for the publicbuyer which could affect the
procurement process at a later stage;• The public buyer can communicate
a clear position to suppliers on theimportance of human rights to the
public buyer and give actual andpotential suppliers advanced notice ofwhat will be expected in the future.
Questions to be addressed through market testing and engagement include:• Is the market ready and capable to deliver what is required? Do potential suppliers
have sufficient technical and management capacity to deliver on relevant
requirements?
• How many suppliers could meet the proposed terms and requirements: will the
procurement be sufficiently competitive? It is important that requirements do not
implicitly single out one supplier, or unfairly impact specific suppliers or groups
suppliers (SMEs, for example);• Are there other, better approaches or solutions that have not been considered?
Human rights requirements can be included in different stages of the
procurement. Which stage is the most effective, considering desired outcomes, toaddress the risks in question?

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DRIVING CHANGE THROUGH PUBLIC PROCUREMENT• Are there any disadvantages to the proposed approach? Could the requirements
proposed be excessive or redundant in addressing underlying risks?
• Could the proposed approach encourage the progressive realisation of humanrights requirements and development of the supplier base? Even if the market
is not yet ready to meet the requirements, is it possible to create awareness andincentivise suppliers by including human rights considerations as award criteria?
• How much information can be shared with the public buyer through reporting
requirements? Are there contractual limitations in the sector which would prevent
full disclosure of documentation?
• What labels or certificates relating to human rights, environment, andtransparency are used within the sector?
• What support would be required or desirable, to help suppliers meet humanrights requirements? What form should support take? Should support should
focus, for example, on SMEs, or other categories of suppliers?
Market testing and engagement can be performed through a wide range of activities
including:• Identification and analysis of existing industry or sector standards relating tohuman rights;• Inviting potential suppliers to discussion events;• Feedback forms and questionnaires.
It is important for buyers in this context, as always, to maintain impartiality andconduct activities transparently, avoiding the exercise of any real or perceived
preference for specific suppliers in any way.

Region Stockholm engaged potential suppliers at an early stage prior
to a new procurement of ICT equipment through a series of hearings.
The invitation to the first hearing was publicly announced and open to
all interested parties. During the hearing, Region Stockholm presented
the goals of the procurement and identified human rights risks thatthe proposed requirements were aimed to address. Participants
were invited to comment on the proposal. They were also given an
opportunity to sign up for a second round of individual hearings, incase some suppliers felt reluctant to discuss sensitive issues in frontof competitors. During the hearings, the suppliers provided insighton the relevance and ambition level of proposed requirements. They
also commented on possible means of verification of proposed
requirements. After the second round of hearings, Region Stockholm
partially modified the requirements before publishing a final callfor tender. By involving the supplier base at an early stage, Region
Stockholm reduced the risk of legal challenges the requirements. One
year later, after eight ICT procurements had been conducted, Region
Stockholm invited suppliers to a roundtable discussion to get feedbackon their experience of both the tender process and requirements.

73© Fran Hogan, Unsplash

PRACTITIONERS

C1.3 INCREASING LEVERAGE

Leverage refers to the ability to effect change in the wrongful practices of anotherparty which is causing or contributing to a human rights abuse. In the context ofpublic procurement, leverage can be exerted by a state over its actual and potential
suppliers, and likewise by a supplier to its actual and potential subcontractors.
Approaches that public buyers can adopt to increase their leverage are discussed in
more detail in Section B3.1 Increasing leverage.
Public buyers may not have sufficient leverage to influence suppliers in their value
chains at the level of individual procurement exercises. However, public buyers canincrease their leverage by grouping procurement exercises, collaborating with otherpublic buyers, or through framework contracts.
Adopting common standards for grouped procurement exercises provides
suppliers with a greater incentive to meet them, in terms of a higher overall contract
price, while it also promotes certainty by avoiding a range of different requirements
across individual tenders. As SMEs may not have the capacity to bid for large
procurements, however, mechanisms such as lots should be used to facilitate theiraccess, where relevant.
As regards collaboration, smaller public buyers may lack resources to develop
requirements of their own. Instead they may consider joining other public buyersthat have already done this. Such collaboration also reduces the risk that suppliers
do not respond to a call for tender because they assess that the costs of meeting
new requirements are too high for a single contract of relatively low value.

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C2. THE PROCUREMENT PROCESS - PRE-AWARD MEASURES
Procurement processes can generally be divided into the pre-award and postaward stages. It is important to distinguish between these as legal scope toinclude requirements that businesses respect human rights, and the form suchrequirements should take, differs across the two stages.
Advantages of pre-award measures

Limitations of pre-award measures• Pre-award measures enable public• If the market is not mature inbuyers to engage with actual andimplementing the human rights
potential suppliers on human rights
requirements, onerous pre-selection
issues at an early stage so that
requirements can prevent some, or
the public buyer can assess how
all, potential suppliers from bidding,mature the market is in human rights
limiting competition, so that therequirements;
procurement exercise may need
• Pre-award measures communicate
to be re-run with less demanding
how a public buyer values humanrequirements;• Pre-award measures generally require
rights and indicates to potential
a high commitment and capacity fromsuppliers the expectation thatthe public buyer to assess tenderers
suppliers respect human rights;• Pre-award measures increase theover a short timeframe and withlikelihood of excluding potential
limited information.
suppliers that do not meet the humanrights standards expected by the
public buyer;• In mature markets where suppliers
are experienced in implementing
human rights requirements, preaward measures can ensure a levelplaying field at the outset and reward
potential suppliers which have
implemented, or are implementing,human rights due diligence.

The section is structured around the following primary issue areas:C2.1 Exclusion grounds
C2.2 Technical specifications
C2.3 Selection criteria
C2.4 Contract award criteria
C2.5 Notice to suppliers

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C2.1 EXCLUSION GROUNDSFIRST STEPS• Consider introducing exclusion grounds for suppliers who havebeen found responsible by courts of other official bodies of serious
human rights abuses within a specific timeframe.

PRACTITIONERSApplying exclusion grounds may prevent potential suppliers from tendering
based on previous or continuing problems in their operations, including humanrights abuses. The aim of including requirements within public procurement that
suppliers respect human rights is not to exclude potential suppliers per se, but toencourage suppliers to increase respect for human rights. However, exclusions may
be necessary and practical for suppliers that do not meet legal requirements or
have, or continue to be, involved in serious human rights abuses.96
Excluding potential suppliers from participating in public procurement exercises
can have serious consequences, especially for businesses which exclusively orlargely supply public buyers. Hence, public buyers applying discretionary exclusion
criteria should be prepared for the possibility that potential suppliers affected by
exclusion criteria may seek to challenge this by way of judicial review.97 On theother hand, applying exclusion grounds can send a clear message to the market
on the public buyer’s standards. Exclusion grounds can also be an effective way ofrewarding suppliers that do ensure respect for human rights at an early stage of the
procurement process.
Exclusion grounds are either mandatory (a buyer must exclude a potential supplierfrom tendering) or discretionary (a potential supplier may be excluded fromtendering), depending on the law or policy establishing grounds of exclusion. If
a public buyer chooses to apply a discretionary ground of exclusion it must be
applied throughout that particular procurement to all potential suppliers.
For both mandatory and discretionary grounds, excluded suppliers must be given
the opportunity to demonstrate that sufficient measures to remedy previous humanrights abuses and prevent further occurrences have been taken to be consideredin procurement procedures (‘self-cleaning’). Such measures might comprise, forexample:• Severing all links with persons or organisations involved in the misconduct;• Appropriate staff reorganisation measures;• The implementation of reporting and control systems;• The creation of an internal audit structure to monitor compliance;• Establishing a grievance mechanism accessible to staff, suppliers, and those
impacted by the supplier’s operations.

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In many jurisdictions public buyers are not allowed to exclude suppliers which haveapplied sufficient self-cleaning measures.

Article 57(1) of the EU Directive 2014/24/EU contains mandatory
grounds for exclusion. These include that an economic operator
has been convicted of criminal offences relating to participating ina criminal organisation, corruption, human trafficking, or breach ofobligations relating to tax payments. Further, discretionary grounds
for exclusion pursuant to Article 57(4) of Directive 2014/24/EU
include the possibility for public authorities to exclude suppliers
when the contracting authority can demonstrate by any appropriate
means a violation of applicable obligations referred to in Article 18(2)of Directive 2014/24/EU, which refers to obligations in the fields ofenvironmental, social and labour law. Furthermore, according to Article
57(4)(c) contracting authorities may exclude suppliers guilty of “grave
professional misconduct”. This may include misconduct relating tohuman rights.98
An important distinction between discretionary and mandatory grounds
for exclusion is that the latter requires a conviction by final decision. For
discretionary exclusions, on the other hand, a public authority is only
required to demonstrate using “appropriate means” that a violation
has occurred. Subject to national rules of evidence and proof thistest could for example be met on the basis of information gatheredin previous procurements, as well as reports from NGOs and expert
organisations. The contracting authorities carry the burden of proof forcircumstances required for exclusion of suppliers. Notably, however,
not all illegal actions or past misconduct by suppliers provide grounds
for exclusion: any exclusion must be proportionate, in line with general
legal principles of EU public procurement law.

In Scotland, statutory guidance has been published under theProcurement Reform (Scotland) Act 2014 advising contracting
authorities on mandatory exclusion grounds:“An economic operator must not be excluded indefinitely fromparticipating in procurement activity. In respect of mandatory exclusion
grounds, an economic operator must only be excluded for a maximumof five years from the date of the conviction, three years for a breach of
the blacklisting regulations, or in the case of a breach of tax or social
security obligations, until the amount owed is paid, including any
applicable interest or fines, a binding agreement to pay it has beenentered into, or it becomes otherwise no longer owed.”

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C2.2 TECHNICAL SPECIFICATIONSFIRST STEPS• Identify whether there are social labels or certificates relevant to
the goods, services or works procured which could be referred to as
requirements.

Technical specifications are used to define the characteristics of goods or services
to be procured. Such characteristics may relate to a specific process or method of
production, or another stage in the life cycle of a product.

PRACTITIONERSTechnical specifications must be drafted to avoid artificially narrowing competition
through requirements that favour a specific supplier. This might happen, forexample, if requirements mirror a specific supplier’s processes or where arequirement refers to one social label when a number of equivalent labels exist.
Technical specifications can be open or descriptive.
Open specifications detail what should be achieved without prescribing the meansof achieving the desired outcome. For instance, in relation to the risk of child labourin quarries in the value chain of stone for construction work, an open specification
could include a requirement that all stone supplied is guaranteed to originate inquarries free from child labour. While open specifications allow suppliers flexibilityof means in meeting requirements, the challenge they pose for buyers is thatexpertise and capacity are required to assess and compare tenders in a fair andtransparent manner.
Descriptive specifications detail solutions or processes that potential suppliersmust fulfil. Descriptive specifications relating to human rights may refer tostandards, labels, or certifications.99 These can provide an objectively-based andtransparent means of evaluation. Environmental labels and certifications are
relatively widely used and experiences of their inclusion in descriptive specifications
can provide useful orientation in the use of standards, labels or certifications
relating to human rights. However, most markets are not mature in terms of theuse of standards, labels or certifications relating to human rights. Buyers should
therefore verify that social standards, labels or certifications are available, andthat they adequately address human rights risks of concern to the procurement inquestion, before referring to them in technical specifications. An analysis of relevantlabels or certificates, such as the SA8000 Standard and BSCI audit certificate, or
product certifications, such as Fair Trade certification, should be included at themarket testing and engagement stage.

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DRIVING CHANGE THROUGH PUBLIC PROCUREMENTThe German Federal Ministry for Economic Cooperation andDevelopment’s Sustainability Compass provides information forgovernment buyers on how to implement sustainability at all stages ofthe procurement process and contains a searchable database of labels
and certifications for important product groups.

The EU Procurement Directives establish that a contracting authority
may refer to a specific label (Article 43) when:• The label requirements only concern criteria which are linked tothe subject-matter of the contract and are appropriate to definecharacteristics of the works, supplies or services that are the subjectmatter of the contract;• The label requirements are based on objectively verifiable and nondiscriminatory criteria;• The labels are established in an open and transparent procedurein which all relevant stakeholders, including government bodies,consumers, social partners, manufacturers, distributors and nongovernmental organizations, may participate;• The labels are accessible to all interested parties;• The label requirements are set by a third party over which theeconomic operator applying for the label cannot exercise a decisive
influence.

© pixpoetry, Unsplash

The Directive further provides that contracting authorities requiringa specific label shall accept all labels that confirm that the works,
supplies or services meet equivalent label requirements. In addition,
contracting authorities may not exclude suppliers not in possession of
any such label if there is not sufficient time for the supplier to attain thelabel before the tender deadline.100

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C2.3 SELECTION CRITERIAFIRST STEPS• Include simple selection criteria which are transparent andreadily achievable for suppliers, and easily assessable for publicbuyers, such as a requirement that the supplier has a policy which
addresses human rights.

Selection criteria allow a public buyer to stipulate minimum human rights
standards, capabilities, and experience a potential supplier must have to beconsidered in a procurement. Selection criteria are not optional ways for a supplierto score points during evaluation of bids; potential suppliers must meet the criteria
to be considered in a procurement at all. Including human rights considerations as
selection criteria sets a clear minimum requirement that all suppliers need to fulfil
to be eligible for evaluation and ensures a minimum level playing field. Selection
criteria have potential application in many tenders, but their use may be limited insome case, for instance, open tenders in the EU.

PRACTITIONERSRegion Stockholm applies the selection criteria that its potential
suppliers of rubber gloves must be able to report on:• The traceability of the rubber gloves to the factories where they are
produced;• The methods the supplier uses to follow-up on compliance with
contractual clauses relating to health and safety, working conditions,human rights and the environment at factories within its value chain;• Whether migrant workers are present in factories within its value
chain, and the percentage of migrant workers at factories producing
rubber gloves supplied to Region Stockholm;• The supplier’s policies relating to forced labour and, if migrant
workers are present, policies to ensure there are no recruitment fees;• An action plan on how the supplier will work towards ensuring suchpolicies are enforced, listing specific steps to be taken.

The stringency of selection criteria that public buyers apply is generally linked
to the maturity of the market as regards human rights risks and their effective
management. Selection criteria should typically focus on recognised industry andsector standards and practices, to avoid any undue discrimination between potential
suppliers, and should be adapted to the character and context of the relevant
sector.

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Article 58 of the EU Directive 2014/24/EU establishes that selection
criteria may relate to:• An economic operator’s suitability to pursue the professional activity
in question (for example, possessing authorisations or associational
memberships necessary to perform the contract);• economic and financial standing (for example, minimum yearly
turnover or possession of professional risk indemnity insurance);• technical and professional ability (for example, possessing thenecessary human and technical resources and experience to performthe contract).
Of the above, selection criteria linked to human rights considerations
may be based on c) technical and professional ability. For example,
they may require suppliers to demonstrate that they have the necessary
expertise to evaluate human rights risks and conduct audits, forinstance, based on past performance; or that they have access to
sufficient human and financial resources to monitor their supply chain
appropriately.

C2.4 CONTRACT AWARD CRITERIAFIRST STEPS• Consider how to give weight to human rights considerations whenscoring bids.

Contract award criteria often take the form of a list of weighted criteria. Tenders arethen evaluated according to the criteria, to yield an overall score. Unlike selection
criteria, they are not mandatory for suppliers, however, the more criteria the supplier
meets, the higher its score will be. Award criteria focus on the bid rather than thebidder and can be grouped into three categories: economic (concerning price);environmental; and social (including human rights considerations), with procurers
seeking to strike a balance between these. They can encourage progress at sector
level by incentivising responsible business practices, even without exclusion.
Contract award criteria linked to human rights should be based on widely acceptedinternational instruments such as the UNGPs or other relevant instruments (seeSection B1.1 Human rights instruments). For human rights criteria to be effective,
their weight within the overall evaluation scheme must be sufficient to influence
the final award decision. Award criteria can then be used to reward bids which
demonstrate robust measures to promote respect for human rights in connection
with performance under the contract in question. For instance, contract award
criteria can relate to the scope and quality of suppliers’ due diligence procedures(see Section B1.1 Human rights instruments).
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Public buyers should ensure that award criteria linked to human rights, as otheraward criteria, align with transparency and accountability requirements underrelevant procurement laws.101 Thus, public buyers must inform suppliers prior
to submission of tenders what weight will be applied to each criterion and whatneeds to be demonstrated to get a specific point. Public buyers have a marginof appreciation in evaluating and weighing tenders. Nevertheless, award criteria
should be designed so that suppliers can substantiate their fulfilment and buyers
can measure this. Buyers further need to provide clear and sufficient informationon the basis of the evaluation of bids and what evidence tenderers should supply to
substantiate their fulfilment of requirements.
Further merits of contract award criteria are that they can be used to promote bestpractice. They can also support buyers in addressing complex issues that are hardto capture through mandatory requirements i.e. technical specifications or selection
criteria. For example, awarding criteria could be used to advantage suppliers who
can demonstrate that the goods or services covered by the contract are produced
by workers who earn a living wage when working under the contract, basing theawarded points on the disclosure of the lower tiers of the value chain relating to thecontract. Labelling and certifications can be used as award criteria (see Section C2.2
Technical specifications for information on labelling and certifications).

PRACTITIONERSArticle 18(1) of EU Directive 2014/24/EU lays out the proportionality
principle, where only criteria linked to the subject matter of the contract
may be used as contract award criteria.
According to Article 67, contracting authorities shall base the awardof public contracts on the most economically advantageous tender(MEAT). Contracting authorities shall identify the MEAT using a costeffectiveness approach, such as life-cycle costing, and may include thebest price-quality ratio, which shall be assessed on criteria including
qualitative, environmental and/or social aspects. Human rights
considerations can therefore form a part of identifying the MEAT.
Furthermore, Article 69 requires contracting authorities to rejecttenders that are abnormally low due to poor human rights standards, incase the supplier is unable satisfactorily to account for the low level ofthe price.102

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DRIVING CHANGE THROUGH PUBLIC PROCUREMENT© Xi Wang, Unsplash

In 2015 the City of Madison, USA, included transparency requirements
in a procurement of apparel typically used by Fire, Metro Transit, Policeand other municipal operations agencies. All potential contractors
submitting a tender were required to include a disclosure statement
which provided the name, address and contact information of eachfacility or factory that had or would produce apparel under this contract.
The disclosure statement also required information on basic hourly
wages, benefits paid, average working hours and overtime policy fordisclosed facilities and factories. Besides these requirements, theprocurement also provided that the winning tenderer would workwith the City of Madison and the Sweatfree Purchasing Consortium toimplement a compliance programme including worker education, agrievance process, responsible purchasing practices and prevention
measures to address health and safety conditions in high-risk areas.

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In 2010 Region Stockholm developed a methodology where the pricequoted by a supplier could be treated as if it were up to 30% cheaper
if they met all award criteria (e.g. tenderer 1 offers the products for
100 SEK and tenderer 2 offers the products for 120 SEK but tenderer
2 meets all the award criteria. A fictitious reduction of 30% allows
tenderer 2’s offer to be treated as if it was 84 SEK and they would win
the contract). Initially, this method was applied only to environmental
criteria. However, in 2018, it was extended to human rights criteria
including, for example:• The level of supply chain disclosure, where contractors were offereda price reduction in relation to how many stages of their supply chain
they were able to disclose;• If risk assessments had been conducted on the sub-contractors
disclosed, and mitigation plans implemented;• If the supplier could demonstrate that worker participation was
ensured and encouraged, for example, through worker committees
and continuous dialogue on working conditions with management;• If the products supplied were produced by a manufacturer applying
the methodology of the OECD Due Diligence Guidance for
Responsible Supply Chains of Minerals from Conflict-Affected andHigh-Risk Areas.

PRACTITIONERS

Depending on the level of disclosure and verification in each of theabove-mentioned areas, suppliers were awarded a certain level of pricereduction. This approach has since been applied to 9 procurement
exercises relating to information and technology, and otherprocurement exercises relating to surgical instruments, rubber gloves
and other medical products.
For the procurement of rubber gloves in Region Stockholm, award
criteria require potential suppliers to report:• The identified risks in the supply chain and how these risks wereassessed;• The results of ‘code of conduct’ audits of factories where the gloves
are manufactured, which must be performed by third parties inaccordance with current and relevant audit standards and methods
such as SA8000, SMETA IV-Pillar methodology, BSCI 2.0 or anequivalent third-party audit methodology. Reported audits must not
moreover be more than two years old.

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C2.5 NOTICE TO SUPPLIERS

The aim of providing notice to suppliers at the pre-award stage is to highlight topotential contractors human rights risks of which they should be aware and about
which they should be prepared to disclose mitigation measures. While publicbuyers are not generally under legal requirements to notify potential contractors ofhuman rights risks, they can be useful means of requiring a supplier to take accountof a particular risk.103

The EU Directive 2014/24/EU does not stipulate explicit requirements
for contracting authorities to notify potential contractors when aparticular contract presents a significant risk of human rights abuses.
However, Article 18(1) does require contracting authorities to adhere to
the principles of equal treatment and transparency. This means that all
tenderers must have access to the same information at the same time,so that no supplier gains advantage or suffers losses due to unequal
conditions. Thus, public buyers should communicate all requirements
to be applied at any stage of the procurement process to potential
contractors in the procurement documents, which can be done througha notice to suppliers on the prevalence of human rights risks.

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PRACTITIONERSThe USA Federal Acquisitions Regulation (FAR) requires an agency
to notify potential contractors if a good being solicited is on a list of
goods produced with forced labor and child labor that is annually
updated by the Department of Labor. If so, the contractor must certifythat it (a) will not source from countries listed as high risk, or (b) has
made a good faith effort to determine whether the good was producedwith forced or child labour. This certification is only applicable to the“end product” and not to its components, and unless there is contrary
information, the FAR requires the procurement officer to rely on thiscertification.104 Concerning human trafficking, in 2015, the UnitedStates Department of State provided support to the NGO Verité toconduct research and compile a report looking at the sectors at greatest
risk for trafficking or trafficking-related activities in order to better
inform government purchasing. The resulting list includes appareland textiles, agriculture, construction, electronics and electrical,
extractives, mining and metal, fishing and aquaculture, forestry,health care, hospitality and facilities operation and transportation. The
contents of this study are now available in the Responsible Sourcing
Tool, an online risk assessment tool, which contains information on
43 additional commodities and 10 comprehensive risk-management
tools; as well as tailored tools for the seafood and food and beverage
sectors. Agencies are not required to give notice to suppliers in thesehigh-risk sectors, but a recent guidance document from the UnitedStates General Services Administration and Department of Energy
encourages this. This guidance has also been incorporated into a
procurement guidance website managed by the United States General
Services Administration. At the sub-national level, public buyers thatare members of the Sweatfree Purchasing Consortium treat all apparelpurchases as high risk and notify bidders that they must comply withthe code of conduct of the relevant city or state for apparel suppliers. As
these codes vary from one jurisdiction to the next, the Consortium has
published a Model Sweatfree Code to promote their harmonisation.

C3. THE PROCUREMENT PROCESS – POST-AWARD MEASURES
Post-award measures are taken after a contract has been awarded and are therefore
limited to the supplier or suppliers that have been awarded a given contract.
Although post-award measures, including human rights considerations, will bevalidated after the contract has been awarded, applicable requirements need to be
included in tender documents and highlighted to suppliers at the pre-award stage.

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Advantages of post-award measures

Limitations of post-award measures• Fewer resources are required toassess contracted suppliers (ascompared to assessing all potential
suppliers at the pre-award stage);• Suppliers can develop measuresthat meet the buyer’s human rights
requirements over a specified period,
yielding a gradual transition to higher
standards;• The public buyer has the entire
contract period to evaluate a
supplier’s compliance with humanrights requirements included as
post-award measures. Given pressure
on public buyers to deliver essential
products for public functions, time
may be too limited at the front endof most procurement process tomonitor, investigate and evaluate
supplier practices adequately;• It can be more effective to ensure
respect for human rights throughpost-award measures and dialogue
with the winner of the contract toensure suppliers aren’t prevented
from bidding and competition thus
limited. This may be particularly
relevant if the potential suppliers are
SMEs;• As it is impossible to fully assess
the risk of all human rights abuses
occurring at the pre-selection stage,
public buyers have a responsibility
and opportunity to address theseissues (detect, prevent, remedy)
during contract performance.

• If using only post-award measures,
public buyers may be unable to verify
which potential supplier is best suited
to comply with the human rights
requirements until after the contract
has been awarded, especially if avalue chain is not mapped and humanrights risks are not known;• It can be difficult to reward those
who already have robust humanrights protections in place, when only
including human rights considerations
as contract performance clauses;• Enforcing post-award measures(i.e. contract performance clauses)
requires an investment in monitoring
suppliers;• Once a contract has been awarded,
leverage may decrease as the publicbuyer is contractually bound to the
supplier; if contractual human rights
requirements are not implemented,
the public buyer can either require
corrective actions or take other noncompliance measures including
termination of contract. Termination
could leave the public buyer without
a supplier of essential products
or services and require a new
procurement, which brings additionalcosts;• In the case of short-term contracts, orif there is a one-off delivery, it may bedifficult to review performance andimplement corrective actions before
the contract has ended and afterthat the public buyer has no moreleverage over the supplier.

The section is structured around the following primary issue areas:
B3.1 Conditions for performance of contracts
B3.2 Sub-contracting

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Pre-award measures and post-award measures should be viewed as
tools in a single toolbox. By using them together, public buyers cancompensate for their respective limitations. Coupling mandatory
minimum requirements in the form of pre-selection criteria with morechallenging post award measures allows public buyers to ensure alevel playing field for suppliers and reward those who are already
implementing human rights protections.

C3.1 CONDITIONS FOR PERFORMANCE OF CONTRACTS

PRACTITIONERSFIRST STEPS• Include requirements that suppliers disclose incident andremediation reports on labour issues, discrimination, harassment orother relevant issues lodged with regulators or by other means.

Requirements included in public procurements through conditions for performanceof contracts (contract performance clauses) take effect after the contract isawarded. Suppliers must meet contract performances clauses as detailed in thecontract and compliance with them is evaluated across the term of the contract.
A breach of contract clauses may lead to penalties, for instance, suspending thecontract or contract termination (see Section C4.4 Enforcement and termination ofcontacts).
Public buyers need to consider that if they are going to rely on contract clauses,
they need to be in a position to monitor and evaluate suppliers’ performance ofthem. This does not mean that every single supplier and every single contract mustbe evaluated: evaluation can be prioritised based on the size of the procurement
exercise and severity of potential and actual risks (see Section C1.1 Human rights
risk identification and assessment). However, requirements should be susceptible
to monitoring. If there is no way of determining whether a requirement can be met,then it should not be included in a contract performance clause. This applies toqualitative indicators whose monitoring requires staff with human rights knowledge
and relevant training.
For many public buyers, the person or team responsible for defining contract
performance clauses for a given procurement will not be the same as the personor team responsible for contract management. Thus, there needs to be ongoing
dialogue between the different procurement actors responsible for designing,monitoring and evaluating contract performance conditions.
Some elements of monitoring may be allocated to suppliers. For instance, a
supplier can be contractually required to self-report, in other words, to describe
risks and measures it has taken to address risks (see Section C4.1 Supplier88© Bugphai

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performance monitoring). Suppliers can also be required to work with an external
body to develop an assessment of risks and measures taken to be provided to the
public buyer. Where necessary, a public buyer can follow up on self-reporting or an
external assessment, for example, by requesting a more detailed explanation of
the highest risks or where measures taken do not seem adequate. However, buyers
need to consider what information suppliers may be prevented from sharing, suchas previous audits results, through legislation or other contractual obligations (seeSection C4.2 Supplier reporting – Legal considerations). In addition, self-reporting
should take place in conjunction with other forms of monitoring rather than as astand-alone exercise.
Contract performance conditions can take many forms. For example, they may
require a supplier:• To demonstrate that it has established specific polices or procedures relating tohuman rights and the subject matter of the contract;• To disclose the performance of sub-contractors working under the contract inquestion to the public buyer on a continuous basis;• To disclose, for instance, incident and/or remediation reports on labour issues,
discrimination, harassment, issues with regulators;• To conduct audits (See C4.1 Supplier performance monitoring);• To implement capacity building initiatives, such as worker education.

According to Article 70 of EU Directive 2014/24/EU, contract
performance conditions need to be linked to the subject matter of thecontract, indicated in the call for competition or in the procurement
documents, and may include social or employment-related
considerations.

Social labels and certifications can also be used as contract performance
conditions, on the same basis as for technical specifications (see Section C2.2
Technical specifications).

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In 2018 the Association of Flemish Cities and Municipalities and the Cityof Ghent (Belgium) published a guide for public purchasers on socially
responsible workwear. The guide defines the following expectations for
suppliers:
ENGAGEMENT
Suppliers must sign a code of conduct and complete a questionnaire
to map how advanced they and their sub-contractors are on socially
responsible procurement.
TRANSPARENCY
Suppliers must offer transparency on the social risks in the value chain
as defined in the code of conduct. Specifically, suppliers must haveaudit reports of the sites where the purchased workwear is produced
independently verified by an independent third party within 6 months ofaward of the contract. The following forms of proof will be admissible:• “Third-party verified risk reports on sustainability performance:
ECOVADIS or equivalent• Third-party verified audit reports: SEDEX/SMETA or equivalent• Audits verified within the process of a management system: BSCI,
Fair Wear Foundation, FLA, SA 8000 audit or equivalent”105

PRACTITIONERSACTION
Suppliers must remedy social risks that do not comply with theprinciples set out in the signed code of conduct by means of acorrective action plan (mandatory) and the continuous improvementof the social risks in the chain (desirable). The risk/audit report (asrequired under Transparency) must indicate what actions are needed
to comply with the signed code of conduct. A direct supplier must
submit an annual action plan to the purchaser within three months after
submission of the risk/ audit report. This report must detail actions ofboth the direct supplier and the suppliers in the value chain as needed
to meet the social requirements in the specifications.
LEADERSHIP
Suppliers are recommended continuously to improve theirperformance as demonstrated “by a positive trend (better score and/or
fewer risks and less required corrective actions) in the scores on social
risks in the chain and/or having been working on the implementationof a management system focused on continuous improvement of thesocial risks in the chain for more than 2 years.”

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DRIVING CHANGE THROUGH PUBLIC PROCUREMENTThe Swedish Regions have adopted a joint code of conduct for all 21
Regions. Contract performance clauses included in procurementsof high-risk goods and services are based on the requirements ofthe code. A supplier who is awarded a contract must be able todemonstrate it has met the following conditions at the time of thecontract entering into force:• It has adopted a policy commitment to respect the terms of thecode. The policy shall be publicly available and adopted by the
management of the company;• It has implemented procedures for disseminating the commitment
within the organisation and the supply chain;• It has appointed a member of the management team who is
responsible for adherence to the code;• It has implemented due diligence procedures to identify and mitigate
potential and actual adverse impacts;• It has implemented monitoring procedures;• It has implemented procedures for corrective actions and remedy.
A contractor is also obligated, within six months from signing theagreement, to produce a written report on progress and results. This
report shall be updated annually during the term of the contract andshall include:• A strategy for risk management, including indicators showing
progress over time;• A summary of recent audit results;• Information on how the contractor is ensuring good working
conditions, in relation to health and safety, worker representation andcollective bargaining, and working hours;• Information on whether the contractor supports the payment of aliving wage and how this is implemented in the supply chain;• Information on how the contractor is ensuring that severe abuses ofworker’s rights such as forced labour and child labour are not present
in the supply chain;• Information on any violations of the code that might have occurred,
and actions taken to mitigate and remedy the impacts.
Depending on the goods or services procured, the required information
can also be tailored to specific industries and risks.

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PRACTITIONERSElectronics Watch evaluates supplier compliance with contract
performance clauses as a means of assessing compliance with theElectronics Watch Code of Labour Standards. Supplier obligations
under the Code include:• Complying with all applicable labour, anti-slavery and humantrafficking laws;• Exercising due diligence to identify and mitigate the risk of potential
breaches of the code;• Including provisions obliging sub-contractors to produce goods inaccordance with the code;• Implementing an appropriate system of training of employees toensure compliance with the code;• Using reasonable and proportionate measures to ensure that subcontractors engage with Electronics Watch in remedying adverse
impacts and preventing breaches of the code.
Moreover, the contractor is also required, within 25 working days ofthe date of the contract, to complete a disclosure form informing
Electronics Watch and the contracting authority of the names andaddresses of factories where goods are produced, as well as the specificproducts and components produced in each factory. The contractor
shall also “use reasonable and proportionate endeavours to disclosethe compliance findings in summary or in whole (or, if available fordisclosure, the audit reports) relating to the factories conducted within
the previous 24 months which it is able to discover and obtain throughreasonable enquiries” relating to the factories where the goods areproduced. Updated information relating to sub-contractor compliancewith the code shall also be provided every six months.106

C3.2 SUB-CONTRACTINGFIRST STEPS• Consider cascading contractual requirements for suppliers to theirsub-contractors.

Value chains can be vast in their extent. Unilever has estimated that its value
chain includes approximately 76,000 suppliers, for example.107 Ensuring that
requirements that actual and potential suppliers respect human rights flow down
the value chain and apply to sub-contractors is key to unlocking the potential of
public procurement to advance business respect for human rights.

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In addition, risks of severe human rights abuses often affect the lower tiers of value
chains. Establishing requirements that sub-contractors respect human rights istherefore key to addressing human rights risks effectively.

In Sweden, contracting authorities may be obliged to require that
sub-contractors that are “directly involved” in carrying out the works
or services covered by the contract apply certain minimum social
standards. The 2016 Swedish Public Procurement Act states that:“A contracting authority shall, if it is necessary, require that the supplierperforms the contract according to stated requirements under thecore conventions of the ILO, if the performance is made under suchconditions that Swedish labour law is not applicable. The authority
shall also require that the supplier shall ensure that its subcontractorsthat directly contribute to the performance of the contract satisfy therequirements made under the first paragraph.”108

The cascading of requirements to sub-contractors can be achieved, for example, bytransparency requirements that require disclosure of the tiers of the value chain.109
Public buyers can ask suppliers to indicate in their tenders any share of the contract
they intend to sub-contract to third parties and any proposed sub-contractors.
Alternatively, buyers can require that suppliers provide compliance performance
information and annual certifications. On the basis of such information, publicbuyers can focus monitoring where it is most needed by, for example, conducting
audits at relevant points in the value chain. (see Section C4.1 Supplier performancemonitoring).
The UNGPs acknowledge the challenges that businesses with large value chains
may face in monitoring whether all their suppliers conduct human rights due
diligence. If this is the case, businesses “should identify general areas where therisk of adverse human rights impacts is most significant, whether due to certain
suppliers’ or clients’ operating context, the particular operations, products orservices involved, or other relevant considerations, and prioritize these”.110
Besides, changes to sub-contracting arrangements can significantly alter humanrights risks identified by audits, self-reporting or other means. Accordingly, publicbuyers may wish to introduce a requirement for suppliers immediately to informthem of replacement of sub-contractors; in some cases, it may also be desirable
to make substitution of a sub-contractor subject to buyer approval. Alternatively,
a supplier can be required to report to the buyer if a sub-contractor substitutionchanges identified risks and to report on how it will manage changes to the risklandscape (see Section C4.2 Supplier reporting).

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DRIVING CHANGE THROUGH PUBLIC PROCUREMENTElectronics Watch includes specific requirements relating to subcontractors in contract performance conditions applicable to main
contractors. If a sub-contractor is found in breach of the Electronics
Watch code of labour standards, main contractors are required tocollaborate with the contracting authority and Electronics Watch toobtain access for monitors to the factories where there has been an
actual or potential breach and provide the contracting authority andElectronics Watch with a full written report of the findings.

The UK’s Crown Commercial Service has developed Joint Schedule 5(Corporate Social Responsibility) setting out expectations on suppliers:

PRACTITIONERS“3.1 The Supplier:
3.1.1 shall not use, nor allow its Subcontractors to use forced, bonded or
involuntary prison labour;
3.1.2 shall not require any Supplier Staff or Subcontractor Staff to lodge
deposits or identify papers with the Employer and shall be free to leave
their employer after reasonable notice; …
3.1.5 shall make reasonable enquires to ensure that its officers,
employees and Subcontractors have not been convicted of slavery or
human tracking offenses anywhere around the world; …
3.1.9 shall not use, nor allow its employees or Subcontractors to use
physical abuse or discipline, the threat of physical abuse, sexual orother harassment and verbal abuse or other forms of intimidation of its
employees or Subcontractors;
3.1.10 shall not use or allow child or slave labour to be used by its
Subcontractors;
3.1.11 shall report the discovery or suspicion of any slavery or trafficking
by it or its Subcontractors to CCS, the Buyer and Modern Slavery
Helpline.”

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Article 71(6) of the EU Directive 2014/24/EU provides examples ofappropriate measures a contracting authority may take in order toensure that sub-contractors observe the obligations referred to in
Article 18(2) (which requires that public contracts economic operatorscomply with applicable obligations in the fields of environmental, social
and labour law).

© Josue Isai Ramos Figueroa, Unsplash

For example, when national law provides for a mechanism of joint
and several liability between sub-contractors and the main contractor,
these rules shall be applied in compliance with the conditions set out
in Article 18(2). Public authorities also have the option of requiring acontractor to replace sub-contractors that the contracting authority has
found to be in breach of any ground of exclusion (See C2.1 Exclusion
grounds). This enables the contracting authority to give the contractor
the possibility of replacing sub-contractors found lacking in relation tohuman rights considerations, instead of terminating the contract.

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C4. CONTRACT MANAGEMENT
This section focuses the contract management stage of a procurement. It addresses
two elements of the due diligence cycle described by the UNGPs: monitoring theeffectiveness of measures taken to address human rights risks; and communicating
about this internally and externally. Both monitoring and reporting are essential
elements of accountability. They ensure that human rights requirements applied ina given procurement are actually implemented in practice.
Contractually, a supplier bears the responsibility to ensure that post-award humanrights requirements are met. However, public buyers should monitor suppliers’
performance of such terms as part of their own human rights due diligence andrisk-management processes.

PRACTITIONERS

Selection and award measures are not adequate in themselves to ensure humanrights are fully respected throughout the value chain. Even if factories have been
audited in the past to obtain a social certification, for example, circumstances on
the ground may change over time. It is therefore important that buyers engage with
suppliers over the duration of the contract, particularly during delivery when risks ofhuman rights abuses may become realities. Where contract management periods
are lengthy, this can provide an opportunity to bring about change in suppliers’
conduct through sustained dialogue and engagement.
Responsibility for the procurement of goods and services and responsibility forcontract management often rest with different teams or individuals. Procurement
teams are unlikely to be involved in the day-to-day execution of a contract. So it
is important to ensure that the contract manager has the capacity and knowledge
to ensure that human rights requirements are met and provide feedback to the
procurement officer to improve future human rights requirements. In this section,
for the sake of simplicity, where the term ‘public buyer’ is used it refers to public
procurement bodies and to individuals with responsibility for the procurement ofgoods and services and the responsibility for contract management.
The section is structured as follows:
C4.1 Supplier performance monitoring
C4.2 Supplier reporting
C4.3 Remedy
C4.4 Enforcement and termination of contacts

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C4.1 SUPPLIER PERFORMANCE MONITORINGFIRST STEPS• Establish a dialogue with suppliers on goals, risks and expectations,and how they intend to comply with contractual human rights
requirements.

This section outlines a few key concepts regarding the design of performancemonitoring requirements in public procurement value chains. Public buyers canrequire a range of monitoring practices from their suppliers in the exercise ofhuman rights due diligence as recommended by the UNGPs. Suppliers can in turnimpose requirements on their sub-contractors at lower tiers. While these two levelsof performance monitoring are distinct they are discussed together here sinceapproaches to be applied are similar in both cases.
VALUE CHAIN MAPPING AND RISK ASSESSMENT
Monitoring a complex value chain requires, at minimum, a basic understandingof its tiers and linkages. Most large suppliers possess at least a basic map of theirvalue chain. In public procurement, it is vital, as a first step in monitoring andevaluation, that public buyers map their value chain in as much detail as possible.
To facilitate this, state suppliers in turn should, if they have not already done so,undertake a detailed mapping of their suppliers and sub-contractors. An accurate
mapping of the lower tiers will enable proper planning and allow suppliers to reportto the public buyer more effectively.
However, in most sectors, detailed value chain mapping will become morechallenging further down the value chain. Suppliers may decline to disclose
to public buyers everything they know about subcontracting arrangements for
instance, where they consider this information to be commercially sensitive.
Alternatively, suppliers may simply lack full knowledge or understanding of thevalue chain beyond a particular tier. Public buyers need to keep such obstacles
in mind when mapping and monitoring suppliers and setting requirements for
supplier compliance.
Once a value chain has been mapped, public buyers next need to assess risk
and prioritise those risks requiring higher levels of monitoring. The means toaccomplish this vary widely according, for instance, to the kind of risk, sector,
product, service or commodity, and geographic location. Public buyers may rely
on desk research, supplier self-assessment questionnaires, worker or community
interviews or surveys, third party audits or any combination thereof. Public buyers
should ensure that risk identification and review of monitoring measures are
ongoing processes, informed and improved over time by continuous evaluation(for further information see Section C1.1 Human rights risk identification andassessment).

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PRACTITIONERS

Sweden’s 21 Regions purchase approximately €13 billion in goods andservices annually. The Regions have adopted a collective model toleverage their procurement power and mitigate harms. Together they
have identified eight high-risk categories of goods (pharmaceuticals,
foodstuff, surgical instruments, surgical gloves, IT, textiles, dressingsand medical technology). Responsibility for monitoring and evaluationin relation to each category has been allocated amongst the different
Regions. In this way, the Regions can pool their buying power toincrease leverage over suppliers while also cutting the costs ofmonitoring by capturing economies of scale.

Copenhagen Municipality in Denmark previously monitored compliancewith contractual labour clauses through unannounced site visits
executed on a random basis. On this basis, it was found that 5.5% ofworkers were not paid in line with minimum wage requirements. In
2018, the municipality transitioned to a risk-based approach, targeting
unannounced visits on types of works analysed as having a higher riskof subcontracting and reliance on migrant workers and other vulnerable
groups. Applying this new method of monitoring, Copenhagen
Municipality identified that 70% of the workers present during the visit
were not receiving the agreed minimum wage. As a result of its findings,
affected workers were paid an average compensation of 15.700 DKK(roughly €2,100) each.

AUDITS AND REVIEWS
Audits can take several forms, including, for example:• Desktop-based assessment of documents shared by the supplier, for example,
reviews of pay and employment conditions applied by service providers; on-site
inspections of supplier or sub-contractor facilities; or a combination of these;• Risk-specific audits targeting previously identified risks, such as child labour andhuman trafficking;• A checklist to compare a business’ practice against a recognised standard (forexample, SA8000) or an individual business, sector- or product-specific code of
conduct, or a more general audit of a supplier’s approach with parameters set by
the public buyer;• Audits conducted by third party specialists providing an outcome report. Publicbuyers can enter a dialogue with suppliers about how to address any issues
identified in the outcome report and require that the supplier adopts a corrective
action plan;• Audits conducted by the individual public buyer (if the public buyer has internal
auditors) or jointly with an external auditor. This approach allows for direct
dialogue between public buyer and supplier; can increase the public buyer’s
influence over the supplier; and can focus on strengthening the supplier’s ability

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to prevent human rights impacts more than audits based on a third-party checklist
can;• Audits conducted jointly by two or more public buyers which, in addition to
reducing the costs of audits by sharing them, can increase public buyers’ leverageand hence their ability to influence positive change by the supplier.

The Swedish central purchasing body SKL Kommentus continuously
audits suppliers under their framework agreements through third party
audits. Each year, two or three high risk categories of goods within
11 priority product areas are chosen for further monitoring through athree-step process of supplier self-assessment, desktop audit andon-site audit. The results and corrective action plans are available to allmunicipalities and Regions and are published on the SKL Kommentus
website.

© Science in HD, Unsplash

Audits are not unique to the human rights field and exist to monitor otherdimensions of compliance, for instance, environment. However, human rights
audits usually require reference to qualitative indicators, whereas financial orenvironmental audits rely more heavily on quantitative indicators. It is important toensure coherence between auditing requirements and consider grouping different
kinds of audits together to reduce auditing costs, overlapping requirements andsupplier audit ‘fatigue’. Besides, assessments of supplier respect for human rights
should not be based on audits alone. An increasingly significant supplement toaudit is worker-driven monitoring. Worker-driven investigations at supplier orsite level often succeed in identifying issues that are missed by third-party social
audits.111

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Nevertheless, and though much has been written about the limitations of social
audit, currently it remains a primary vehicle for monitoring of corporate humanrights performance.
Limitations of social audit• Public buyers and suppliers
are familiar with audits andaccept the purpose of them;• Social audit standards andproviders of social auditing
services are readily available
for use;• Social audit reports are easily
understood by suppliers at
all tiers of the value chain;• Social audits can identify atleast some human rights
risks and abuses.

• Comprehensive social audits are resourceintensive. Correspondingly, social audits areoften under-resourced and inadequately
executed;• There a structural mismatch between the timeand expertise available during short on-sitesocial audit inspections and the dynamic,
varied character of supplier human rights risks;• The ‘snapshot’ examination permitted bysocial audits often fails to reveal human rights
abuses, even in worksites audited with on-site
inspections;• Social audits often fail to achieve adequate
worker engagement, and so do not identify
all human rights abuses and risks, as well as
potential solutions;• Many social audits are predominantly paperbased exercises, which lack the ability tocontextualise and identify root causes,
including issues that are not visible at the work
location;• Suppliers may be trained or mandated toprovide generic or stock answers to social
audits, to avoid detection of human rights
issues;• Social audits may not be subject to follow-up
to discover whether suppliers’ answers reflect
the reality on the ground or investigate whether
policies and plans recommended by audits are
implemented in practice;• Suppliers may be required to undertake
multiple overlapping audits on behalf ofdifferent buyers, entailing disruption for
management or production. Consequently,
suppliers may not fully commit to audit
process.

PRACTITIONERSAdvantages of social audit

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Some of the above limitations of social audit can be mitigated, for instance, throughchoice of an appropriate audit approach for the value chain, supplier or priority
risks in question, or ensuring allocation of sufficient resources. Supplementing or
substituting a social audit with worker-driven monitoring, including interviews withworkers off-site, without management presence, in workers’ own languages, andduring paid working hours, may address some deficiencies of the conventionalsocial audit model. Diversifying the information base of an audit, through dialogue
and collaborative monitoring with local labour or civil society organisations, humanrights experts and monitors can likewise strengthen a supplier assessment.
The timing of a social audit should be carefully considered. If a contract runs
over a long period with multiple deliveries, or if there is a framework agreement,
then an audit and follow-up can occur during the contract period, but before thelast delivery. In the case of short-term contracts, or if there is a one-off delivery,
the audit should be done early and either before the last (or only) delivery. If theaudit occurs after the last delivery, there is a risk that a supplier may object as theintended audit would not link to the contract object. It is also difficult to follow up
on an audit if the contract is soon to expire and the contractual relationship ends.

A collaboration between the City of Madison, USA, and Sweatfree
Purchasing Consortium in apparel procurements included theestablishment of an independent review panel, coordinated by the
Sweatfree Purchasing Consortium. This panel assists the City ofMadison in evaluating contractor compliance at the proposal, award,
and contract performance stages of the process, and includes experts
in international labour law as well as representatives from the publicagencies that use the contract.

WORKERS’ VOICE
Including feedback from workers is a vital part of a robust audit process. This isbecause workers have a unique line of sight into, and understanding of, operationsin their workplaces. They are also the people whose human rights are mostoften directly impacted by poor supplier practices. It is thus important to engage
and empower workers in monitoring, evaluation and reporting because of theirinherent human dignity, besides the value that their insights add to the quality ofassessment. The rights to freedom of association and collective bargaining andto decent work are enshrined in international law. Involving workers and ensuring
they have a proper role during due diligence and audit processes can help realise
these rights, in line with the public buyers’ duty to protect as well as suppliers’
responsibility to respect human rights, as highlighted by the UNGPs.112

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DRIVING CHANGE THROUGH PUBLIC PROCUREMENTElectronics Watch is based on a worker-driven monitoring methodology.
It engages with workers employed by electronics manufacturers
through monitoring partners located near workers’ communities. The
monitoring partners are independent labour rights experts that alreadyhave or whom develop relationships of trust with workers. By being
situated locally near sites of production, Electronics Watch’s monitoring
partners can quickly respond when workers report a problem.

Recently, new IT solutions have emerged which allow the gathering of worker
feedback. Such electronic applications can allow the confidential or anonymous
registration of complaints by individual workers. If trends are analysed across allcomplaints registered, they may also provide useful global information on the
success, or failure, of measures deployed by public buyers or suppliers, to addresshuman rights risks. On the other hand, such solutions bring their own challenges.
These may be practical, for instance, not all workers have access to internet or smart
phone access. They may also be connected to separate human rights concerns,
linked to privacy or personal data.

PRACTITIONERSThe NGO Issara Institute’s Inclusive Labour Monitoring system is basedon continuous monitoring of workplaces through direct engagementwith workers who report issues and seek assistance through the Issara
hotline and other smartphone-enabled worker voice channels.

As a further measure to facilitate workers’ voices, public buyers can consider
engaging in dialogue with workers alongside market testing to identify humanrights risks in the value chain. In global value chains, where in-person events may
be impractical, electronic means can be used to obtain input from workers andrepresentative bodies, such as trade unions and NGOs. Public buyers can also
consider publishing summaries of in-person events and submissions received anddetailing how they are taking workers’ voices onboard.
INTEGRATION INTO EXISTING SYSTEMS
Many public buyers and suppliers already have codes of conduct, performancemonitoring systems and evaluation systems in place in areas other than humanrights. Public buyers may, for instance, have codified environmental procurement
requirements, while many suppliers apply quality control audit regimes totheir production processes. It usually makes sense to leverage such existing
infrastructure, as well as existing training and management systems, in humanrights performance monitoring. This has the dual benefits of minimising costs andenhancing overall efficiency.

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SUPPLIER DIALOGUE
Start-up meetings provide contract managers with an opportunity to engage
suppliers on goals, risks and expectations, and to discuss how suppliers intend tocomply with contractual human rights requirements. Such meetings can also help
gain an understanding of the supplier’s maturity in working with human rights,
and whether the supplier meets similar requirements from other buyers, whether
public or private. Start-up meetings can be especially beneficial for contracts whichfall into higher risk categories and for contracts with a one-off delivery as they may
provide the only opportunity in practice for preventive supplier engagement.
For a contract manager, getting to know a supplier’s situation and challenges
through ongoing dialogue increases the possibility of preventing and rectifying
issues. It also gives the public buyer an opportunity to increase its influence. An
ongoing dialogue which provides an opportunity to discuss how a supplier canin practical terms respect human rights can be particularly valuable for SMEs.
Dialogue allows a supplier to share its opinion on the buyer’s handling of thecontract and can ensure that the buyer does not impose requirements that cancontribute to the supplier’s failure to comply with its human rights obligations,for example, where a change of deadlines may pressure a supplier, or its subcontractors, to impose unreasonable overtime requirements.
C4.2 SUPPLIER REPORTING

FIRST STEPS• Include a requirement that suppliers report annually on how they
are meeting human rights requirements within the contract;• Discuss annual reports with suppliers and support them indeveloping action points to address risks and opportunities
identified in reports.

In this section, ‘reporting’ refers to the stage of a monitoring and evaluation processthat communicates back to the higher tiers of supply, or with the public buyer,
providing information or certifying compliance with policies and procedures. Thissection mainly focuses on the level of reporting that public buyers should requireof suppliers. However, it also discusses what reporting requirements higher tiersuppliers may require of lower tier sub-contractors.
Public buyers and suppliers have a wide range of options in terms of what they may
require by way of reporting, and what systems and structures they may establish
to collect reports. Such options include reporting on key performance indicatorsof compliance; reporting of raw data from audits or self-analysis questionnaires,
employee interviews and surveys; or reporting of certification statements thatformally attest to compliance and that may in addition entail liability for noncompliance. Exploring all possible types of reporting lies outside the scope of thisToolkit. Instead, this section describes some key aspects for consideration.
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DRIVING CHANGE THROUGH PUBLIC PROCUREMENTLEGAL CONSIDERATIONSWhen defining supplier reporting requirements, public buyers may choose torequire that all information, or substantial elements, be made public in the interestsof transparency and accountability. Before doing so, two key questions to ask are,firstly, can suppliers legally share the information requested, for example, on thelower tiers of the value chain or on their compliance performance indicators, withthe public buyer? And secondly, what expectation of confidentiality are suppliers
under to protect confidential business practices?
Contractors may be unable to share information, for example, audit results or otherdata that sub-contractors control, due to contractual or legislative obligations,for example, under anti-monopoly or anti-trust laws. When defining suppliermonitoring and reporting requirements, public buyers thus need to consider
potential limitations in the type of information their contractors can obtain andshare with third parties.

PRACTITIONERSLimitations deriving from statute vary according to the jurisdiction. Laws, policies,and guidance relating to corporate non-financial reporting and financial reporting
obligations, and transparency requirements can orient public buyers about how
much information they can require suppliers provide or publicly share. The scopeof contractually-derived limitations can be investigated during market testing
dialogue. In practice, it is likely that business-sensitive information will need to be
removed from reports submitted to buyers, though what is considered sensitive will
depend on the jurisdiction.
Another key consideration is collecting and storing reports. Supplier reports cancontain confidential information so secure storage is important. Supplier reports
should also be categorised as they will provide benchmarks for future reports fromthe same supplier and can provide guidance and good practice examples for publicbuyers when designing new human rights requirements or as a basis of comparison
when assessing other suppliers.
THE NUMBER OF TIERS FOR SUPPLIERS TO REPORT ON
Public buyers must address the question of how many tiers down their value
chains they can reasonably expect to exert influence, which is a relevant factor
in determining requirements on suppliers to report on compliance. The first tierof the value chain should usually be a priority. However, engaging with lower
tiers of the value chain is essential to allow the primary supplier to report with ameaningful degree of confidence. This can be achieved through ‘flow down’, whererequirements imposed on a high-level supplier can be required to cascade down
through formal mechanisms to sub-contractors at lower tiers of the value chain.
However, in practice there may be limited circumstances where you can legallyoblige sub-contractors to provide information. In contrast, utilising leverage canbe a more practical and effective means to get information from lower tiers of thevalue chain.

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A challenge in accessing information, whether through legal obligations or throughleverage, lies in the diminishing visibility and increasing complexity of value chainsas they move to lower tiers of supply. Furthermore, cascading requirements downa value chain can become more complicated in global value chains operating indifferent jurisdictions with different laws. For example, some jurisdictions may
not require businesses to keep records on the details required, and if these exist,
they may be paper-based and in local languages. This complexity and opacity
will vary depending on sector, geography, and countries involved, and reporting
requirements should be tailored accordingly.

PRACTITIONERSCOMPLIANCE PERFORMANCE INFORMATION
Compliance performance metrics are probably the most important type of
information to include in reporting requirements. These may be Key Performance
Indicators. Alternatively, they can be more qualitative, drawing on worker interviews
or broader audit reporting. In either case, data on compliance performance mustbe sufficient to assess effectiveness, target areas of risk, mitigate adverse impacts
and continuously evaluate, learn and improve supplier requirements over time.
Deciding what should be reported on can only be achieved by involving all relevant
stakeholders in the design process. Procurement documents should include
specific and clear expectations for suppliers around their compliance performance
reporting obligations, as well as their obligations to report such metrics for subcontractors at various tiers.
Some public buyers require suppliers, or a subset of suppliers at specific tiers orpurchasing levels, to create compliance plans for the implementation of humanrights due diligence. Such compliance plans are not performance monitoring orreporting per se (though they should certainly include these elements). However,
the requirement to develop a plan, and report on it, can serve as assurance
for the buyer that monitoring and reporting are taking place. Compliance planrequirements should be related to the level of complexity and risk of a particular
contract and complex value chains require more robust compliance plans thansimple direct service contracts.
ANNUAL CERTIFICATION
One way of ensuring compliance is to impose an annual certification requirement.
Such certifications are legally binding statements that must be endorsed at seniorlevels of a supplier’s management structure, attesting to actual complianceor the implementation of robust compliance plans and monitoring or control
mechanisms. For instance, under the United States’ anti-trafficking procurement
regime, suppliers who are required to create compliance plans must also annuallycertify that such plans are in place and being implemented. Such certification
requirements ensure that suppliers have a clear legal liability for implementing
practices to monitor and address abuses. Similarly, certifications could be requiredby higher-level suppliers of their sub-contractors, ensuring flow down of the liability
to ensure requirements that suppliers respect human rights are in place at lower
tiers.

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C4.3 GRIEVANCE MECHANISMSFIRST STEPS• Consider including a requirement that suppliers provide access toan effective grievance mechanism for alleged victims of humanrights abuses in their value chain.

The UNGPs highlight that business enterprises have a responsibility to ensure
access to effective grievance mechanisms. Public buyers can consider including
requirements that suppliers provide access to an effective operational-levelgrievance mechanism. A grievance mechanism is an important risk management
tool that may allow a public buyer to become aware of and address human rights
abuses at an early stage, prevent ongoing abuses and prevent abuses from reoccurring.
Advantages of requiring suppliers toprovide access to an operational-levelgrievance mechanism

Limitations of requiring suppliers toprovide access to an operational-levelgrievance mechanism• It can provide a direct route to remedy • Running an operational-levelfor victims without requiring themgrievance mechanism requires
to engage in more formal and costly
resources and staff capacity andjudicial remedy processes;
knowledge;• It can provide an early warning system • Workers at lower tiers of the value
so that human rights abuses can bechain are unlikely to have knowledge
addressed early and prevent ongoingof the grievance mechanism.
113
or escalating abuses;• It provides valuable information on
actual risks and abuses in a sector,
geography, or value chain which
can inform future risk analysis andmeasures to address identified risks.

Requirements for suppliers to establish or demonstrate effective operationallevel grievance mechanisms need to be highlighted to suppliers at an early stage
and communicated in tender documents. Such requirements can be included inselection criteria, contract award criteria or conditions for performance of contract,
as long as the specific conditions of each method are adhered to.
Public buyers can consider establishing or participating in grievance mechanismsthat receive complaints from workers in their value chain. Public buyers can, forexample, act as an oversight body or mediator for complaints; or they can provide

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information on, and access to, their own grievance mechanism for parties who do
not accept the outcome of a supplier’s operational-level grievance mechanism.
Such approaches can strengthen the legitimacy of a supplier’s grievancemechanism and can give the public buyer better access to information regarding
risks in the value chain, which will strengthen the design of requirements in public
procurements.
Suppliers can establish their own grievance mechanisms or join already establishedgrievance mechanisms. If the public buyer has its own grievance mechanism, thiscan be opened to suppliers to use, which can support SMEs that lack capacity
to establish their own. There are a range of industry and sector-based grievancemechanisms which suppliers can sign up to which can provide effective access toremedy. Examples of industry and sector-based grievance mechanisms include:

PRACTITIONERS• Fair Wear Foundation• Bangladesh Accord Complaint Mechanism• Aluminium Stewardship Initiative
A challenge when including requirements for suppliers to establish or demonstrateeffective operational-level grievance mechanisms in public procurements is thatrisks of the most severe adverse human rights abuses can occur further upstream
from the supplier who bids for the public contract. It is therefore important to tailor
relevant requirements to the specific procurement as this enables the requirements
to flow down to the necessary stages of the value chain. Still, in practice there may
be limited circumstances where sub-contractors can be legally obliged to establish
operational-level grievance mechanisms. In contrast, using leverage can be a morepractical and effective means to achieve this with sub-contractors at lower tiers ofthe value chain (see Section C1.3 Increasing leverage).
The UNGPs’ effectiveness criteria for grievance mechanisms should be consideredwhen defining relevant requirements in public procurements. According to the
UNGPs, non-judicial grievance mechanisms, both State-based and non-Statebased, should be:a) Legitimate: enabling trust from the stakeholder groups for whose use they areintended, and being accountable for the fair conduct of grievance processes;b) Accessible: being known to all stakeholder groups for whose use they areintended, and providing adequate assistance for those who may face particularbarriers to access;c) Predictable: providing a clear and known procedure with an indicative time frame
for each stage, and clarity on the types of process and outcome available andmeans of monitoring implementation;d) Equitable: seeking to ensure that aggrieved parties have reasonable access tosources of information, advice and expertise necessary to engage in a grievanceprocess on fair, informed and respectful terms;

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DRIVING CHANGE THROUGH PUBLIC PROCUREMENTe) Transparent: keeping parties to a grievance informed about its progress, andproviding sufficient information about the mechanism’s performance to build
confidence in its effectiveness and meet any public interest at stake;f) Rights-compatible: ensuring that outcomes and remedies accord withinternationally recognized human rights;g) A source of continuous learning: drawing on relevant measures to identify
lessons for improving the mechanism and preventing future grievances andharms;
Operational-level mechanisms should also be:h) Based on engagement and dialogue: consulting the stakeholder groups forwhose use they are intended on their design and performance, and focusing on
dialogue as the means to address and resolve grievances.114
By referring to the UNGPs and these effectiveness criteria public buyers canensure that the requirements are based on clear and transparent standards, against
which suppliers can be evaluated. Requirements can, for example, ask suppliers
to demonstrate how the effectiveness criteria are met, either as a mandatory
requirement or that the performance of the suppliers are scored based on theirability to demonstrate effectiveness.115
C4.4 ENFORCEMENT AND TERMINATION OF CONTRACTSFIRST STEPS• Adapt existing termination and escalation clauses to include
severe human rights abuses as grounds for remedial action andtermination

For human rights considerations to be enforceable and effective, public buyers
need to have a range of sanctions at their disposal for non-compliance. The option
to terminate is one of these sanctions, but this should not be undertaken lightly.
Clauses related to the enforcement and termination of contracts provide essential
tools to require suppliers address human rights abuses when they arise, and theability to cut ties to suppliers which do not respect human rights. They are likely
to be scrutinised in detail by the supplier, so can also provide a useful means offacilitating a dialogue on human rights.
Before resorting to termination, a public buyer can turn to other measures suchas dialogue or stopping work and suspension of the contract or supplier. Stopping
work and suspending the contract or supplier enables the buyer, depending on thecircumstances, to immediately halt the supplier’s operations causing the humanrights harm. Subsequent contractually mandated steps can include an investigation
and, if human rights abuses are found, a requirement that the contractor undertakes

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DRIVING CHANGE THROUGH PUBLIC PROCUREMENTa formal process to remedy human rights abuses and prevent reoccurrence,
including through the development of an action plan. This action plan should
include monitoring requirements to ensure the actions are effective. Associatedcosts can be placed on the supplier. However, this is more effective with longer
term contracts as for short-term contracts, or one-off delivery, it may be difficult
to implement escalation measures before the contract has ended, after which
the public buyer typically has little or no leverage over the supplier. Public buyers
can also consider including clauses on withholding final payment, payment
rates, whereby part of the contract sum is subject to the fulfilment of certain
requirements, fines for not providing documentation or addressing a default.
Where no other options are viable, the public buyer can include provisions
regarding termination of the contract. Grounds for termination might include:• A supplier’s unwillingness to implement corrective actions, entailing noncompliance with requirements of the contract;• When severe human rights abuses are found, which would have constituted
grounds for exclusion had they been known before awarding the contract;• Repeated violations of the terms of the contract.

PRACTITIONERS

Immediate grounds for termination could be considered when non-complianceinvolves the supplier’s business operations being connected to gross or serious
human rights abuses, such as abuses of the right to life or the prohibition on tortureand other cruel, inhuman or degrading treatment or punishment.

In January 2019, Region Stockholm terminated an agreement ‘SLL833
Servers and Storage’ with its supplier. An audit conducted by Region
Stockholm in 2016 showed several non-compliances regarding social
responsibility in the supply chain for servers. An action plan to address
the non-compliances was drafted and approved. However, after
several contacts with the supplier over a period of two years, the noncompliances were not rectified. After a final warning, Region Stockholm
decided to terminate the contract, not due to the severity of the noncompliances but because the supplier failed to act to ensure it was incompliance with the contractual terms.

The Scottish Government’s standard contract terms and conditions
allow for contract termination in the event of failure by a contractor tocomply with environmental, social and employment law. Guidance wasissued to encourage all public bodies in Scotland to consider a similar
approach.

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GLOSSARY

Audit – a systematic inspection of a process or procedure to assess compliancewith requirements or regulations
Award criteria – a set of criteria according to which a tender is chosen
Bid – the price offered by a tender participant during the bidding procedure
Contract management – the management of the performance of contracts whererequirements are monitored and evaluated
End user/ service user – the individually using or receiving of the goods (enduser) and services (service-user) procured
Framework agreement – an agreement between one or more contracting
authorities and one or more economic operators, the purpose of which is toestablish the terms governing contracts to be awarded during a given period, inparticular with regard to price and, where appropriate, the quantity envisaged
Goods – objects of every kind and description including raw materials, products
and equipment and objects in solid, liquid or gaseous form, and electricity, as well
as services incidental to the supply of the goods if the value of those incidental
services does not exceed that of the goods themselves
Grievance mechanism – a routinised, State-based or non-State-based, judicial or
non-judicial process through which grievances concerning business-related humanrights abuse can be raised and remedy can be sought
Human rights due diligence – a process to identify, prevent, mitigate and accountfor how a business addresses the adverse human rights impacts that the businessenterprise may cause or contribute to through its own activities, or which may bedirectly linked to its operations, products or services by its business relationships
Human rights impact – the impact of an action (or lack thereof) on human rights
Human rights obligations – obligations of states to act in certain ways or to refrainfrom certain acts, in order to promote and protect human rights and fundamental
freedoms of individuals or groups111

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Human rights requirements – requirements within public procurement that actualand potential suppliers respect human rights
Leverage – the ability to effect change in the practices of another entity that causes
harm; a business’s ability to influence the behaviour of others (for example, throughcontractual requirements, dialogue, and/or multi-stakeholder initiatives andapproaches)
Market testing – an engagement exercise to listen to the supplier base and gain
an understanding of the maturity and progress on particular issues, such as humanrights
Notice to suppliers – notice provided by the public buyer at the pre-award stage toclarify for potential contractors that they need to be aware of potential human rights
risks and should be prepared to disclose how such risks are being mitigated
Post-award measures – requirements that take effect after the contract isawarded and are evaluated during the term of the contract (also known as contract
performance clauses)
Pre-award measures – requirements that take effect before the award of thecontract and provide a basis for awarding the contract
Public buyer – the institution which undertakes public procurement and individuals
connected to this institution (for example, policy makers, public buyers, contract
managers). Other terms used to describe the institution include contracting
authority, procurement body, procurement agency
Policy maker – individuals who have the authority to set or influence the policy
framework of public procurement; the main decision makers of the implementationof a good practice but can also directly benefit from it if, for instance, the goodpractice enhances accountability
Public procurement – the process by which public authorities, such as government
departments, local authorities, and state-owned enterprises, purchase work, goods
or services from companies
Procurement cycle – includes the following activities: needs assessment,
tender phase and contract award, payment and contract management, as well as
monitoring and audit
Procurement policy objective – a desired outcome that policy makers want toachieve through public procurement

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Remediation/ remedy –t he process of providing access to remedy for an adverse
human rights impact and the substantive outcomes that can counteract theadverse impact; these may take a range of forms, such as apologies, restitution,
rehabilitation, financial or non-financial compensation, and punitive sanctions, aswell as the prevention of harm through, for example, injunctions or guarantees of
non-repetition
Risk – the probability of an event occurring; non-technical risks relate to the
managerial, legal, social and political issues of a business project or activity,
whereas the technical risks are the physical, structural, engineering andenvironmental aspects
Services – Work, duty or labour performed by a contractor pursuant to a contract.
Rendering of services may involve the associated provision of utilities or facilities if
specified in the terms of the contract. Typical examples of services include security,catering, cleaning, travel management, event management, IT services, training,freight forwarding, and consulting
Sub-contractor – a party that carries out work for a contractor as part of a larger
project
Supplier – a supplier supplies goods and services to the buyer
Supply chain – the network involved in the supply of goods and services to thebuyer
Sustainable public procurement – a process whereby public organisations meettheir needs for goods, services, works and utilities in a way that achieves value formoney on a whole life cycle basis in terms of generating benefits not only to theorganisation, but also to society and the economy, whilst significantly reducing
negative impacts on the environment
Stakeholders – a person, group or organisation with an interest in, or influence on,a business project or activity, as well as those potentially affected by it
Selection criteria – criteria which stipulate minimum human rights standards,
capabilities, and experience a potential supplier must have to be considered in a
procurement
Technical specifications – the totality of the technical prescriptions contained in
the procurement documents, defining the characteristics required of a material,
product or supply, so that it fulfils the use for which it is intended by the contracting
authority, such as quality levels, environmental and climate performance levels etc.
Tender – a type of public procurement procedure that involves bidding

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Termination of a contract – cancellation of the contract before it is fully performed
UN Guiding Principles on Business and Human Rights (UNGPs) – anauthoritative global standard for preventing and addressing the risk of adverse
human rights impacts linked to business activity
Value chain – a value chain encompasses all the activities and materials that go
in to goods or services. It covers the production of raw materials, manufacturing
stages, transport, delivery, and end-of-life disposal. It includes activities of suppliers
and sub-contractors
Vulnerable and at-risks groups – groups of individuals who, due to existing
circumstances, are at increased risk of being subject to human rights abuses andviolations© Paul Felberbauer, Unsplash

Works – all activities associated with the construction, reconstruction, demolition,
repair or renovation of a building, structure or activities such as site preparation,
excavation, erection, building, installation of equipment or materials, decorationand finishing, as well as services incidental to construction such as drilling,
mapping, satellite photography, seismic investigations and similar services provided
pursuant to the procurement contract, if the value of those services does notexceed that of the works themselves

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NOTES1	The term public procurement is mainly used in the context of the EU legislation;other systems use other phrases to cover the same concept. For example, in theUS, reference is generally made to governmental contracts or public contracts,
and the World Trade Organisation relies on the term government procurement.
2	This work has been conducted by other actors, including the International
Learning Lab on Public Procurement and Human Rights
3	Notably it draws from Claire Methven O’Brien, Nicole Vander Muelen, andAmol Mehra, Public Procurement and Human Rights: A Survey of Twenty
Jurisdictions, International Learning Lab on Public Procurement and Human
Rights, July 2016
4	International complaint lodged over Australia’s failure to investigate abuses by
Manus contractor, Human Rights Law Centre, November 27, 20175	Michael Koziol, Court Approves $70 Million Compensation Payout to Manus
Island Detainees, Sydney Morning Herald, 6 September 20176	Melissa Davey, Australian government and G4S hit with multiple lawsuits from
Manus Island staff, 27 December 2019
Katharine Murphy, Home affairs denies it was ‘desperate’ when $423m Paladin7	
contract awarded, The Guardian, 18 February 2019; For information on how
to include human rights protections in the procurement of private militaryand security companies, see The Geneva Centre for the Democratic Controlof Armed Forces (DCAF), A Contract Guidance Tool for Private Military andSecurity Services: Promoting Accountability and Respect for Human Rights andInternational Humanitarian Law, 20168	Alan Travis, Justice ministry to take over Medway child jail from G4S, The
Guardian, 5 May 20169	Louise Voller, Servant of Servers, Danwatch, 5 October 2015
10 Sebastian Abrahamsen and Lasse Skou Andersen, Forsvaret afviste historie om
nordkoreansk tvangsarbejde for et år siden, Information, 28 September 201711	Hannah Ellis-Petersen, NHS rubber gloves made in Malaysian factories linked
with forced labour, The Guardian, 9 December 2018; Shekinah Apedo, Forced
Labour in Malaysia is being funded by EU Healthcare Systems, 3 May 201912	Claire Methven O’Brien, Nicole Vander Muelen, and Amol Mehra, Public
Procurement and Human Rights: A Survey of Twenty Jurisdictions, International
Learning Lab on Public Procurement and Human Rights, July 2016; and Red
Interamericana de Compras Gubernamentales, Taller sobre Derechos Humanosy Compras Públicas, Octubre 6 de 2017, Santiago de Chile

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13	OECD, Responsible business conduct in government procurement practices,
June 201714	See, for example, Stine Foss, Leading by example? Procurement as lever forhuman rights due diligence, International Learning Lab on Public Procurementand Human Rights Blog, 22 January 201915	Claire Methven O’Brien, Nicole Vander Muelen, and Amol Mehra, Public
Procurement and Human Rights: A Survey of Twenty Jurisdictions, International
Learning Lab on Public Procurement and Human Rights, July 201616	OECD, Responsible business conduct in government procurement practices,
June 2017; European Commission, International Public Procurement (website);
European Union, Public Procurement Indicators 2015, DG GROW G4 –Innovative and e-Procurement, 19 December 2016.
17	See Special Representative of the Secretary-General on the Issue of Human
Rights and Transnational Corporations and Other Business Enterprises,
Guiding Principles on Business and Human Rights: Implementing the United
Nations “Protect, Respect and Remedy” Framework, Annex, U.N. Doc. A/
HRC/17/31 (Mar. 21, 2011) (by John Ruggie) [hereinafter UN Guiding Principles],Commentary to Guiding Principle 6, and in Commentary to Guiding Principle 2
in relation to extraterritorial jurisdiction.
18	Finnish Government, Agenda for Action on Business and Human Rights,
Outcome Paper of the Business and Human Rights Conference organized
by Finland’s Presidency of the Council of the European Union, 2 December
2019, paras 18-19; Olga Martin-Ortega and Claire Methven O’Brien “Public
procurement and human rights: interrogating the role of the state as buyer”,
Ch.1 in O. Martin-Ortega and C. Methven O’Brien, Public procurement andhuman rights: Opportunities, risks and dilemmas for the state as buyer(Cheltenham: Edward Elgar, 2019); OECD, Responsible business conduct ingovernment procurement practices, June 2017;19	As well as customary international law
20	See the OECD’s definition here and the European Commission’s definition here
21	The term public procurement is mainly used in the context of the EU legislation;other systems use other phrases to cover the same concept. For example, in theUS, reference is generally made to governmental contracts or public contracts,
and the World Trade Organisation relies on the term government procurement.
22	Olivier de Schutter, United Nations Special Rapporteur on the right to food,
The Power of Procurement, Public Purchasing in the Service of Realizing theRight to Food, Briefing Note 08, April 2014. Also see FAO & WFP, Home-Grown
School Feeding, Resource Framework, Technical Document, Rome, 2018;and Luana F.J. Swensson, Aligning policy and legal frameworks for supporting
smallholder farming through public food procurement: the case of homegrown school feeding programmes, International Policy Centre for Inclusive
Growth (IPC-IG) Working Paper No. 177, FAO and UNDP, 201823	Olivier de Schutter, United Nations Special Rapporteur on the right to food,
The Power of Procurement, Public Purchasing in the Service of Realizing theRight to Food, Briefing Note 08, April 2014. Also see Siobhan Kelly, Luana F.J.

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Swensson, Leveraging institutional food procurement for linking small farmers
to markets Findings from WFP’s Purchase for Progress initiative and Brazil’s
food procurement programmes, Food and Agriculture Organization of theUnited Nations Rome, 201724 UN Guiding Principles 4 and 6
25	Claire Methven O’Brien, Nicole Vander Muelen, and Amol Mehra, Public
Procurement and Human Rights: A Survey of Twenty Jurisdictions, International
Learning Lab on Public Procurement and Human Rights, July 201626	See the UN Guiding Principles on Business and Human Rights
27	UN Guiding Principle 15
28	UN Guiding Principles 4 and 6
29	UN Committee on the Rights of the Child, General Comment No. 16 (2013) onState Obligations Regarding the Impact of the Business Sector on Children’s
Rights, UN Doc. CRC/C/GC/16, April 2013; UN Committee on Economic, Social
and Cultural Rights, Statement on the obligations of States Parties regarding
the corporate sector and economic, social and cultural rights, 46th Session, UN
Doc. E/C.12/2011/1, May 201130	In particular, via National Action Plans on business and human rights. See also,
Claire Methven O’Brien, and Amol Mehra, Sara Blackwell, & Catherine Poulsen
Hansen, National Action Plans on Business and Human Rights: Current Statusand Future Prospects for a New Business and Human Rights GovernanceTool, 1 Bus. and Hum. Rts. J. 117 (2015) and Daniel Morris, Lukas Bogner, Lison
Daubigeon, Claire Methven O’Brien, and Elin Wrzoncki, National Action Plans
on Business and Human Rights, An Analysis of Plans from 2013-2018, Danish
Institute for Human Rights, 201831	See for example, UN Guiding Principles Reporting Framework Investor
Statement,
32	Many national human rights institutions and civil society organisations are
now taking this view. See, for example, International Coordinating Committeeof National Institutions for the Promotion and Protection of Human Rights,
Edinburgh Declaration (2010). Also see Robert Stumberg, Anita Ramasastry,
Meg Roggensack, Turning a Blind Eye? Respecting Human Rights inGovernment Purchasing, September 201433	Claire Methven O’Brien, Nicole Vander Muelen, and Amol Mehra, Public
Procurement and Human Rights: A Survey of Twenty Jurisdictions, International
Learning Lab on Public Procurement and Human Rights, July 201634	UN Guiding Principle 1
35	UN Guiding Principle 3
36	UN Guiding Principle 8. Guiding Principle 6 also provides that “States should
promote respect for human rights by business enterprises with which they
conduct commercial transactions,” and indicates this can be done “including
through the terms of contracts.”
37	UN Guiding Principles 6, Commentary38	UN Guiding Principles 10
39	UN Guiding Principles, General Principles

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40	UN Guiding Principle 13 and accompanying Commentary
41	According to https://globalnaps.org/issue/public-procurement/ as of
October 2019, of the 23 states with NAPs, 22 include a specific focus on public
procurement.
42	UN General Assembly, The Report of the Working Group on the Issue of Human
Rights and Transnational Corporations and Other Business Enterprises UN
Doc. A/73/163 2018. Paragraph 59.; John Ruggie, Keynote Address United
Nations Forum on Business & Human Rights Palais des Nations Geneva, 2016
Switzerland. Page 4; OECD, OECD Due Diligence Guidance for Responsible
Business Conduct, 2018; United Nations Global Compact, Human Rights: The
Foundation of Sustainable Business, 2018, page 4
43	The Guidelines are a set of recommendations addressed by states adheringto the OECD Declaration on International Investment and Multinational
Enterprises to multinational enterprises operating in or from these states
44	Northern Ireland Human Rights Commission, Public Procurement and Human
Rights in Northern Ireland, November 201345	UN Global Compact and International Chamber of Commerce, Scaling up
Sustainability Collaboration: Contributions of business associations and sector
initiatives to sustainable development, September 2015. See, for example,
the statement of the Business and industry major group at the HLPF 2016:“The business community embraces the UN’s 2030 Agenda for Sustainable
Development with the 17 Sustainable Development Goals (SDGs) at its core,and is committed to partner on its successful implementation”. According to a2017 PriceWaterhouseCoopers study 71% of businesses say they were alreadyplanning how they will contribute to the implementation of the SDGs.
46	Examples of initiatives include: The Business & Sustainable Development
Commission, Better Business Better World: The Report of the Business &Sustainable Development Commission, January 2017; Business and Sustainable
Development Commission, The Business Commission Passes Baton to SDG
Initiatives, and the World Business Council for Sustainable Development,
Overview; the United States Council for International Business, Business for2030: Forging a Path for Business in the UN 2030 Development Agenda; andUnited Nations, Sustainable Development Goals Knowledge Platform
47	Daniel Morris, Elin Wrzoncki and Signe Andreasen Lysgaard, Responsible
Business Conduct as a Cornerstone of the 2030 Agenda – A Look at the
Implications, A Discussion Paper, Danish Institute for Human Rights, 201948	See further: Claire Methven O’Brien and Olga Martin-Ortega, “The SDGs,
human rights and procurement: An urgent need for policy coherence”, UNOPS,
Thematic Supplement to the 2016 Annual Statistical Report on United Nations
Procurement: Procurement and the 2030 Agenda (2017).
49	Daniel Morris, Elin Wrzoncki and Signe Andreasen Lysgaard, Responsible
Business Conduct as a Cornerstone of the 2030 Agenda – A Look at the
Implications, A Discussion Paper, Danish Institute for Human Rights, 201950	Olga Martin-Ortega and Claire Methven O’Brien, Advancing Respect for Labour
Rights Globally through Public Procurement, Politics and Governance (ISSN:

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2183–2463) 2017, Volume 5, Issue 4, Pages 69–79. See also, PWC, Study on“Strategic use of public procurement in promoting green, social and innovation
policies”, Final Report, DG GROW European Commission;
51	Olga Martin-Ortega and Claire Methven O’Brien “Public procurement andhuman rights: interrogating the role of the state as buyer”, Ch.1 in O. MartinOrtega and C. Methven O’Brien, Public procurement and human rights:
Opportunities, risks and dilemmas for the state as buyer (Cheltenham: Edward
Elgar, 2019).
52	As highlighted in Claire Methven O’Brien, Nicole Vander Muelen, andAmol Mehra, Public Procurement and Human Rights: A Survey of Twenty
Jurisdictions, International Learning Lab on Public Procurement and Human
Rights, July 2016, p20; G7, Leaders’ Declaration G/ Summit 7-8 June 2015,
Schloss Elmau, Germany; OECD, Responsible business conduct in government
procurement practices, June 2017; OECD, OECD Guidelines for Multinational
Enterprises, 2011 Edition; OECD, Ministerial Communiqué on Responsible
Business Conduct, 26 June 2014; OECD, Public Procurement for Sustainable
and Inclusive Growth, Enabling reform through evidence and peer reviews(date unknown); ILO, Agenda of the 105th Session of the International Labour
Conference, April 22, 2016; OSCE Office of the Special Representative andCo-ordinator for Combating Trafficking in Human Beings, Model Guidelines on
Government Measures to Prevent Trafficking for Labour Exploitation in Supply
Chains, February 201853	Claire Methven O’Brien, Nicole Vander Muelen, and Amol Mehra, Public
Procurement and Human Rights: A Survey of Twenty Jurisdictions, International
Learning Lab on Public Procurement and Human Rights, July 2016, p15
54	A revised text was adopted in 2012 which allows for technical specifications
which “promote the conservation of natural resources or protect theenvironment”. It also highlights that evaluation criteria may include“environmental characteristics”.
55	Claire Methven O’Brien, Nicole Vander Muelen, and Amol Mehra, Public
Procurement and Human Rights: A Survey of Twenty Jurisdictions, International
Learning Lab on Public Procurement and Human Rights, July 2016, p16
56	See the European Commission website on Thresholds
57	The Public Procurement Act (2016:1145), Chapter 17, Section 4, available in
English here58	Switzerland, Public Procurement Act (PPA, SR 172.056.1) and Public
Procurement Ordinance (PPO, SR 172.056.11).
59	See U.S. General Services Administration, Department of Defense, National
Aeronautics and Space Administration, Federal Acquisition Regulation, 2019.
Also see Robert Stumberg, Anita Ramasastry, Meg Roggensack, Turning a
Blind Eye? Respecting Human Rights in Government Purchasing, September
2014 which identified gaps in United States procurement rules and developed amenu of reforms that are specific to the apparel sector
60	See, for example, the Defense Federal Acquisition Regulation Supplement.
61	The anti-trafficking in persons Federal Acquisition Regulation (FAR) rule oncombatting trafficking in persons was issued to implement Executive Order

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13627, “Strengthening Protections Against Trafficking in Persons in Federal
Contracts,” and Title XVII of the National Defense Authorization Act for fiscal
year 2013, “Ending Trafficking in Government Contracting.”
62	Note V at Subpart 22.15, (Prohibition of Acquisition of Products Produced byForced or Indentured Labor), which implements the Child Labor Exec. OrderNo. 13126, 64 Fed. Reg. 32383 (June 12, 1999) (“Prohibition of Acquisition of
Products Produced by Forced or Indentured Child Labor”)
63	Exec. Order No. 11,246, 30 Fed. Reg. 12319 (Sept. 28, 1965) (“Equal
Employment Opportunity”); Exec. Order No. 13,672, 79 Fed. Reg. 42971 (July23, 2014) (“Further Amendments to…Executive Order 11246”).
64	Proposed FAR Subpart 22.20 (Fair Pay and Safe Workplaces); Proposed Rule,
Department of Defense (DoD), General Services Administration (GSA), andNational Aeronautics and Space Administration (NASA), Federal Acquisition
Regulation, Fair Pay and Safe Workplaces, 48 CFR Parts 1, 4, 9, 17, 22, and 52[FAR Case 2014–025; Docket No. 2014– 0025; Sequence No. 1], RIN 9000–
AM81, 80 Fed. Reg. 30548 (May 28, 2015). This proposed rule implements
Executive Order—Fair Pay and Safe Workplaces (July 31, 2014), available at
http://www.whitehouse.gov/the-press-office/2014/07/31/executive-order-fairpay-and-safe-workplaces.
65	41 C.F.R. § 50-201.603(b). This is also applicable to the District of Columbia.
While the CFR provides Dec. 8, 1960 as the date on which the current regulation
was finalized and posted in the Federal Register that is merely the date of themost recent revision of the exemption. The exemption has existed, in someform, since the very first regulations ever promulgated under the Act. See 1 Fed.
Reg. 1405.
66	Scottish Government, Procurement Journey, Procurement Strategy, Annual
Report and Annual Report on Procurement in Scotland (website)
67	Claire Methven O’Brien, Nicole Vander Meulen, and Amol Mehra, Public
Procurement and Human Rights: A Survey of Twenty Jurisdictions, International
Learning Lab on Public Procurement and Human Rights, July 2016; andEuropean Commission, Public Procurement (website)
68	Aruna Kashyap, “Paying for a Bus Ticket and Expecting to Fly”, How Apparel
Brand Purchasing Practices Drive Labour Abuses, Human Rights Watch, 23 April
2019 and Dr. Başak Bağlayan, Ingrid Landau, Marisa McVey & Kebene Wodajo,
Good Business: The Economic Case For Protecting Human Rights, BHR Young
Researchers Summit et al, December 2018
69	Organisation for Economic Co-operation and Development, Public
Procurement Toolbox, Terminology (website)
70	Olga Martin-Ortega and Claire Methven O’Brien, Advancing Respect for Labour
Rights Globally through Public Procurement, Politics and Governance (ISSN:
2183–2463) 2017, Volume 5, Issue 4, pages 69–79
71	The Association of Flemish Cities and Municipalities and the City of Ghent,
Toolbox, Socially Responsible Workwear, A guide for public purchasers, April
2018
72	Scottish Government, Public sector procurement, Sustainable procurement
duty (website)

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73	Shift, Using Leverage in Business Relationships to Reduce Human Rights Risks,November 201374	OECD Directorate for Public Governance and Territorial Development, OECD
Recommendation of the Council on Public Procurement [DCD/DAC(96)11/
FINAL] 201575	Vyacheslav Polonski, AI is convicting criminals and determining jail time, but isit fair? World Economic Forum, 19 November 2018; Julia Angwin, Jeff Larson,
Surya Mattu and Lauren Kirchner, Machine Bias, ProPublica, 23 May 201676	Catrine S Byrne and Julia Sommer, Is the Scandanavian Digitalisation Breeding
Ground For Social Welfare Surveillance? 27 May 2019; Jacob Mchangama,
Hin-Yan Liu, The Welfare State Is Committing Suicide by Artificial Intelligence,
Foreign Policy, 25 December 2018; Automating Society – Taking Stock ofAutomated Decision-Making in the EU, Algorithm Watch, 29 January 201977	Matthew Keegan, Big Brother is watching: Chinese city with 2.6m cameras isworld’s most heavily surveilled, The Guardian, 2 December 2019; Sigal Samuel,China Is Going to Outrageous Lengths to Surveil Its Own Citizens, The Atlantic,
16 August 2016; Anna Gross, Madhumita Murgia and Yuan Yang, Chinese techgroups shaping UN facial recognition standards, Financial Times, 1 December
201978	For more information, contact coc.lsf@sll.se
79	UN Guiding Principle 880	US Department of Defense, Combating Trafficking in Persons, Training(website), US Homeland Security, Human Trafficking Awareness Training(website)81	Guiding Principle 382	See World Trade Organization (WTO) Agreement on Government Procurement,
Article XVI
83	Nora Götzmann, Tulika Bansal, Elin Wrzoncki, Cathrine Poulsen-Hansen,
Jacqueline Tedaldi and Roya Høvsgaard, Cross-Cutting: Stakeholder
Engagement, Human Rights Impact Assessment Guidance and Toolbox, RoadTesting Version, The Danish Institute for Human Rights, 201684	OECD Directorate for Public Governance and Territorial Development, OECD
Recommendation of the Council on Public Procurement [DCD/DAC(96)11/
FINAL] 201585	International Organization for Standardization, ISO 20400: 2017 Sustainable
Procurement – Guidance, April 2017 Clause 686	Shift, Remediation, Grievance Mechanisms and the Corporate Responsibility to
Respect Human Rights, Shift Workshop Report No. 5, May 201487	Also see Institute for Human Rights and Business and Caux Round Table Japan,
Sustainable Sourcing, Grievance Mechanisms, and Human Rights at MegaSporting Events - Japan Meeting	Report, March 2018 for more information on grievance mechanisms at mega
sporting events88	See Clean Clothes Campaign et al, Follow the Thread, The Need for Supply
Chain Transparency in the Garment and Footwear Industry, April 2017, and other
Clean Clothes Campaign publications available in their publications archive

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89	Claire Methven O’Brien, Business and Human Rights, A handbook for legal
practitioners, Council of Europe, 2019, Section 1.2.3.2
90	Northern Ireland Department of Finance, Procurement Guidance Note PGN
03/18, Human Rights in Public Procurement, 19 December 201891	Nora Götzmann, Tulika Bansal, Elin Wrzoncki, Cathrine Poulsen-Hansen,
Jacqueline Tedaldi and Roya Høvsgaard, Human Rights Impact Assessment,
Guidance and Toolbox, Road-Testing Version, The Danish Institute for Human
Rights, 201692	For more information on assessing human rights impacts (i.e. risks), see Nora
Götzmann, Tulika Bansal, Elin Wrzoncki, Cathrine Poulsen-Hansen, Jacqueline
Tedaldi and Roya Høvsgaard, Human Rights Impact Assessment, Guidance andToolbox, Road-Testing Version, The Danish Institute for Human Rights, 2016;
and Organisation for Economic Co-operation and Development, OECD Due
Diligence Guidance for Responsible Business Conduct, 2018, Chapter 3
93	Katharine Early, The Joint Ethical Trading Initiatives’ Guide to buying
responsibly, Dansk Initiativ for Etisk Handel (DIEH) (Danish Ethical Trading
Initiative), Ethical Trading Initiative (UK), Initiativ for Etisk Handel (IEH) (Ethical
Trading Initiative Norway), 201794	Claire Methven O’Brien, Business and Human Rights, A handbook for legal
practitioners, Council of Europe, 201995	For more information, contact coc.lsf@sll.se
96	See UN Guiding Principle 1997	See Shift, Using Leverage in Business Relationships to Reduce Human
Rights Risks, November 2013; Mariëtte van Huijstee, Lydia de Leeuw
and Joseph Wilde-Ramsing, Should I stay or should I go? Exploring the roleof disengagement in human rights due diligence, The Centre for Research on
Multinational Corporations (SOMO), April 2016; and Organisation for Economic
Co-operation and Development, OECD Due Diligence Guidance for Responsible
Business Conduct, 201898	See, for example, European Court of Justice, Order of the Court (NinthChamber) of 4 June 2019. Consorzio Nazionale Servizi Società Cooperativa(CNS) v Gruppo Torinese Trasporti Gtt SpA. Request for a preliminary rulingfrom the Tribunale Amministrativo Regionale per il Piemonte. Case C-425/18
which notes that the concept of “professional misconduct” cannot be limited
solely to breaches and negligence incurred in the execution of a public
contract.”99	See Axel Marx, Public procurement and human rights: current role andpotential of voluntary sustainability standards, Ch.8 in O. Martin-Ortega and C.
Methven O’Brien, Public procurement and human rights: Opportunities, risks
and dilemmas for the state as buyer (Cheltenham: Edward Elgar, 2019).
100	See the final paragraph of Article 43(1) in Directive 2014/24/EU
101	This would run contrary to EU Procurement rules
102	Article 18(2) refers inter alia to the ILO Core conventions.
103	Claire Methven O’Brien, Nicole Vander Muelen, and Amol Mehra, Public
Procurement and Human Rights: A Survey of Twenty Jurisdictions, International

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Learning Lab on Public Procurement and Human Rights, July 2016, pages 4041.
104	U.S. General Services Administration, Department of Defense, National
Aeronautics and Space Administration, Federal Acquisition Regulation, 2019,at 22.1503 (Procedures for acquiring end products on the List of Products
Requiring Contractor Certification as to Forced or Indentured Child Labor).
105	The Association of Flemish Cities and Municipalities and the City of Ghent,
Toolbox, Socially Responsible Workwear, A guide for public purchasers, April
2018106	Electronics Watch, Electronics Watch Contract Conditions for Supply Contracts,
March 2019107	Unilever, Enhancing Livelihoods, Advancing Human Rights, Human Rights
Report 2015108	The Public Procurement Act (2016:1145), Chapter 17, Section 4, available in
English here109	Clean Clothes Campaign et al, Follow the Thread, The Need for Supply Chain
Transparency in the Garment and Footwear Industry, April 2017110	Commentary to UN Guiding Principle 17111	See Worker-Driven Social Responsibility Network, Comparison of Critical
Elements of WSR vs. CSR and MSIs, 21 April 2019; Electronics Watch, WorkerDriven Monitoring (website); and the work undertaken by Worker Rights
Consortium112	Although including workers’ voices, including through new technologies, canaddress some limitations of more traditional audits, there is some criticism that
this does not address all of the structural limitations of audits, as is highlighted
in the Business and Human Rights Resource Centre’s 2019 blog series Beyond
Social Auditing.
113	Shift, Remediation, Grievance Mechanisms and the Corporate Responsibility to
Respect Human Rights, Shift Workshop Report No. 5, May 2014114	See Guiding Principle 31115	The UN is undertaking an Accountability and Remedy Project which willarticulate in detail how businesses should provide access to remedy. It will
publish a final report during 2020.

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