Safeguarding Human Rights through Public Procurement

Public procurement has an essential role to play in facilitating states’ fulfillment of their duties to protect, respect and fulfill human rights.

As ‘mega-consumers,’ governments have the purchasing power to set standards for production, such as acceptable minimum wages, safe workplaces and the provision of protective gear, and non-discrimination on the basis of gender, race or disability.

Yet governments, like other buyers, ultimately purchase goods, services and infrastructure from companies with global supply chains—complex supply chains with multiple tiers, many unknown to the final customer. Many supply chains function and flourish on the back of human rights abuses, including the use of child labour, forced labour, or the suppression of freedom of association.

Early Signs of Best Practice

Earlier this month, government procurers and experts met for the first workshop of the International Learning Lab and Human Rights to share best practice. This includes:

• Use compliance with the International Labour Organization’s Core Conventions as selection criteria in the evaluation of bids, and then as contract clauses (e.g. Norway);
• Select “high risk” sectors that are susceptible to human rights abuses and focus on those sectors (e.g. Sweden and Norway);
• Require that procuring agencies buying from “high risk” sectors certify that their procurement is taking reasonable efforts to prevent labour abuses (e.g. United States);
• Use award criteria to give additional points to suppliers who report on their due diligence (e.g. Sweden rewards suppliers reporting on the OECD Due Diligence Guidance for Responsible Supply Chains of Minerals from Conflict Affected and High Risk Areas);
• Develop model contracts with human rights provisions (e.g. Switzerland);
• Use contractual penalty clauses that apply to contractors and all subcontractors (e.g. Switzerland);
• Require that contractors disclose any past violations of human rights for the procuring agency to take into consideration (e.g. United States); and
• Hire senior advisors on labour and human rights to advise contracting officers on assessing bids (e.g. United States)

Going Beyond “Tick Box” Exercises

The big question, however, is how to enforce and verify compliance. While it is admirable, moreover essential, that governments include ILO Core Convention compliance in public sector contracts, how can this become more than a “tick box” exercise? How can public procurement provide support to those vulnerable workers at the bottom of global supply chains?

Here there are no easy answers. At present there are essentially no incentives or penalties in any country for public procurers to enforce human rights compliance, and certainly not beyond the so-called “tier 1” suppliers. We could look to the private sector, which has arguably made greater strides than the public sector in this space, particularly following dramatic events such as the collapse of the Rana Plaza in Bangladesh. Yet many stakeholders feel that private sector impact has been negligible, and that the public sector should do better when it comes to enforcing human rights.

Some sector-specific initiatives, such as Electronics Watch, are making ground. Emerging lessons point to the value of partnerships with such labour rights monitoring organizations, and forming ‘intelligence networks’ to feed information back to procuring agencies. Indeed any approaches that encourage sharing the costs of monitoring across a number of agencies will also be important. Efforts that enable workers to enforce their own rights are perhaps the gold standard, such as the establishment of complaints-based monitoring systems through which workers can file complaints and seek timely remedies.

Ultimately there is a need for “radical transparency,” as one stakeholder put it, if we are to make meaningful progress on procurement and human rights. This could manifest as an obligation for companies working with the government to disclose all of the subcontractors and suppliers in their supply chain. We should not underestimate the effort such an initiative would require, but such radical transparency might be a vital step to shedding light on dark, hidden and uncomfortable realities.