Q&As

Can a contracting authority specify in its selection criteria that non-compliance with human rights obligations internationally in the economic operator’s supply chain will result in exclusion? If so, is it sufficient for the economic operator to self-certify compliance? Should the contracting authority undertake any independent verification?

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Produced in partnership with Denis Edwards of Normanton Chambers
Published on LexisPSL on 05/06/2019

The following Local Government Q&A Produced in partnership with Denis Edwards of Normanton Chambers provides comprehensive and up to date legal information covering:

  • Can a contracting authority specify in its selection criteria that non-compliance with human rights obligations internationally in the economic operator’s supply chain will result in exclusion? If so, is it sufficient for the economic operator to self-certify compliance? Should the contracting authority undertake any independent verification?

This Q&A is limited to the law in England under the Public Contracts Regulations 2015 (PCR 2015), SI 2015/102.

In answering this question, it is necessary to remember the important distinction under the public procurement directives and PCR 2015, SI 2015/102 between exclusion criteria, selection criteria and award criteria.

When an authority is considering bids, a first step will be to apply the statutory exclusion criteria. Some of these criteria are mandatory while others are discretionary, which means that it is for national law and/or contracting authorities to determine the extent to which they apply in particular exercises.

After the exclusion criteria are applied, the selection criteria will be applied to short-list tenderers for consideration. Finally, the successful bidder will be selected by applying the award criteria.

Human rights considerations can feature at all of these stages but the scope for them to do so is different at each stage.

The exclusion criteria are set out in Article 57 of Directive 2014/24/EU (the Public Contracts Directive) (and in English law, in PCR 2015, SI 2015/102, r 57). Among the mandatory exclusion criteria are that a tenderer has been ‘convicted’ of child labour or other human trafficking offences. This is the only explicit ground for exclusion related to human rig

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