BRIEFING JULY2002

 

INCREASING OPPORTUNITIES FOR DISABLED EMPLOYMENT -

POSITIVE ACTION AT EU AND NATIONAL LEVEL

IN PUBLIC CONTRACTING

 

GMB is a major UK general tradeunion, which includes a large membership of disabled people working insupported employment workplaces in the UK. We have a Brussels office torepresent our trade union at European level: GMB Rue Montoyer 40, B-1000Bruxelles

Tel: 00 32 2 230 56 75; Fax: 00 32 2230 56 24; e-mail: gmb-brussels@geo2.poptel.org.uk

 

This Briefing provides a background to the development ofour work towards changing EU Public Procurement rules to increase opportunitiesfor disabled employment in public contracting. It also hopes to stimulatediscussion as to how we can best develop this campaign in the next crucialstages.

 

 

Background

       European Public Contracting Authorities spend over 1000 billion Euros (approx. 600billion) each year on goods andservices. This is around 14% of the European Unions GDP.

 

       Existing EU laws on public procurement offer littlescope for considering social objectives in awarding contracts. Various forms ofNational preferential systems in contracting have operated in different EUMember States to help promote disabled employment, some being legally challengeddue to the vagueness of the EU rules in this area.

 

       At present, there is no legal clarity as to how farcontracting authorities can go in helping to promote disabled employment. As aresult, many public contracting authorities have become wary of awardingcontracts to sheltered* employment factories and workshops.

 

(*Although there are different terms for such workplaces across Europe,this term seems to be the most commonly used at EU level, and has so beenadopted in terms of these proposals).

       In the UK, the Priority Suppliers Scheme was ended in1994 on the grounds that it contravened EU Internal Market rules. Since losingthis scheme, the level of public contracts coming into many factories andworkshops in the UK has reduced enormously. We accept there were certainweaknesses regarding this scheme, but at the time the EU Commission offered theGovernment discussions on an alternative scheme this offer was not taken up.

 

       These contracts provided good quality and meaningful work for disabled workers, who, in somefactories, are now reduced to packing goods, and other uninteresting workunworthy of their high level of skills.

 

 

Developments at EUlevel and GMB Actions

 

       The GMB has been working at EU level since 1994 tocampaign within the EU Institutions for changes to EU legislation on PublicProcurement rules.

 

       We have worked in co-operation with the EuropeanOrganisation for employers of disabled workers (EUG-IPWH recently re-named Workability International), the European PublicService Union, and the European Disability Forum as part of our campaign.

 

       In 1996 the EU Commission brought out a Green paperPublic Procurement - the Way Forward, which accepted that public procurementmight be used to pursue social objectives, specifically mentioning the case ofa possible captive market for sheltered employment factories and workshops, which could not reasonably expect tocompete on equal terms with commercial enterprises enjoying normal levels ofproductivity. (relevant pages attached in briefing pack).

       This was reinforced in an EU Commission Communicationin March 1998. (relevant pages attached in briefing pack)

 

       In May 2000, the Commission brought forward a packagereviewing the existing EU Directives on Public Procurement, which included a Proposal for a Directive of the EuropeanParliament and the Council on the co-ordination of procedures for the award ofpublic supply contracts, public services contracts and public works contracts.(COM 2000 275 final), and one covering the Utilities sector.

 

       The Commission has also prepared 2 interpretativeCommunications (not legally binding) on law applicable to public contracting.One on the Social aspects ofprocurement and one on the Environment.The Communication on the social aspects was disappointing in that it failed togo beyond an interpretation of existing provisions under the presentDirectives, and gave a very weak interpretation of some key recent case law.

 

       The review has provided us with a real opportunity tochange EU legislation and protect sheltered employment factories from unfaircompetition.

 

       In January and March 2001, GMB held a series ofmeetings in Brussels with Commission officials, MEPs and supportingorganisations, to discuss the potential for changing the EU legislation duringthis review process. We were encouraged by an indication of support forprotecting sheltered employment factories from unfair competition. Initialsuggestions were that this should be achieved by adding the award of suchcontracts to the section on Excluded contracts in the EU Proposals for aDirective.

 

       GMB, in co-operation with the European employers ofdisabled people and the European Disability forum, submitted an amendment to this effect to allEuropean Parliament Committees dealing with the proposals, but concentratingon: Employment and Social Affairs, Legal Affairs and Industry. The SocialAffairs Committee adopted the following amendment in its Opinion in July 2001.Several other committees adopted similar wording in their Opinions.

 

       In Legal Affairs Committee in October 2001, a compromiseamendment was widely supported, which moved the focus towards reserving contracts for shelteredemployment workplaces.

 

       On 17thJanuary 2002, the full European Parliament Plenary, in its first readingvote on the revised proposals, supported an amendment for reserved contractswith a very wide majority.

 

       At Nationallevel, the GMB held discussions in September2001 with the relevant UK Government Minister, Maria Eagle and heradvisors, to explain our position, and seek support in the EU Internal MarketCouncil dealing with these proposals. We have been encouraged by theGovernments support for this amendment at EU level, but are concerned abouttheir commitment to invoke it at national level in terms of Best Value policy.

 

       The Commission drafted revised proposals of theDirectives in view of developments at the beginning of May 2002, which included an amendment to allow reserved contractsfor sheltered employment workplaces.

 

       At the EUInternal Market Council meeting on 21May 2002, Ministers reached political agreement on the revised Publicprocurement Directive concerning supply, service and works contracts. Work isstill underway on the Utilities Directive.

The amendment concerningsheltered workplaces is included:

 

Section 4 Special Arrangement Article 19a Reserved Contracts

 

Member States may reserve the right to participatein public contract award procedures to sheltered workshops or provide for suchcontracts to be executed in the context of sheltered employment programmeswhere most of the employees concerned are handicapped persons who, by reason ofthe nature or the seriousness of their disabilities cannot carry on occupationsunder normal conditions.

The contract notice shall make reference to this provision.

 

       The texts will return to the European Parliament for asecond reading probably in the Autumn2002, with a possible further conciliation process between the Council andParliament prior to final agreement. The earliest timescale for final agreementwould be the final quarter of 2002. Given the sensitivity of several aspects ofthe wider proposals, this could go into 2003.

 

 

OtherEqual Treatment developments in the Public Procurement Proposals

 

       The European Parliament supported an amendment requiringthe inclusion of the tenderers equal treatment policy, among the criteriagoverning the choice of the most economically advantageous offer. This was notsupported in Council, but a recital was included Recital 31 which statesthat under specific conditions mentioned acontracting authority may use criteria aiming to meet social requirements, inparticular in response to the needs defined in the specifications of thecontract of particularly disadvantaged groups of people to which those receiving/usingthe works, supplies or services which are the object of the contract belong.

 

       Companies tendering for public contracts are obliged torespect labour legislation applicable in the Member States, and companiesguilty of violating labour legislation can be excluded from the tenderingprocedure.

 

       The technical specifications Annex includes design forall requirements, (including accessibility for disabled people) of products,works and services to be tendered.

 

 

The Next Steps Working Together

 

       On the particular issue of reserved contracts forsheltered employment workplaces, though we are encouraged by the level of crossparty, and cross Member State support for including reserved contracts forsheltered employment, we must monitor the process at EU level carefully in itsfinal stages.

 

       There is very mixed support, and even hostility fromseveral Member States on the wider social and environmental objectives withmany of the Parliaments positive amendments not being carried through in thepolitical agreement in Council on 21 May. We need to be sensitive to this inthe development of our work in the coming months.

 

       If the amendment is successfully adopted into the finaltext of the proposals, we need to be clear that this is not the end of the campaign,but rather the successful completion of a phase of our work.

 

       An equally significant challenge will be positiveimplementation of these provisions at national level, and we would do well tobe giving practical consideration to this phase now in a structured dialogue.

 

       Once implemented, we have a responsibility to makethese improvements to the legislation work for us, in a spirit of socialpartnership.

 

Finally

 

       We want to see good quality public contracts back insupported employment factories, to renew employees pride in the high quality oftheir work.

 

       We want local, regional and governmental contractingauthorities to be able to actively promote the award of contracts to supportedemployment factories, without fear of breaching EU rules, or being obstructedby the Governments Best Value policy.

 

       With regular contracts coming in, far from fearingclosures and redundancies, supported employment factories and workshops wouldbe recruiting and expanding, offeringfar more disabled people the opportunity of active employment, who arepresently excluded from the world of work.