Legal aspects of sustainable public procurement - Legal aspects of sustainable public procurement Christopher McCrudden(Professor of Human Rights Law

Legal aspects of sustainable public procurement - Legal...

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Legal aspects of sustainable public procurement Christopher McCrudden (Professor of Human Rights Law, Oxford University) Executive Summary The report examines the legal issues arising from the use public procurement to encourage sustainable development. In doing so, governments attempts to combine several functions of government: participating in the market as purchaser, regulating it at the same time, by using its purchasing power to advance conceptions of sustainable development. The term “linkage” is used throughout this book to describe this use of procurement. “Linkage” is used in preference to the concept of “conditionality”, with which it shares certain similarities, because the diversity of ways in which procurement and sustainable development have been brought together goes beyond simply awarding contracts on certain conditions, and extends to include, for example, the definition of the contract, the qualifications of contractors, and the criteria for the award of the contract. We consider the diversity of types of linkage in Chapter 1. In Chapter 2, we identify (briefly) several legal concerns that have frequently been identified about the use of such procurement linkages. The study then considers in more detail those international and regional agreements that raise legal issues for SPP. Some directly and indirectly encourage the adoption of SPP, whilst other agreements act as a constraint on the way SPP is adopted. These are considered in chapter 3. The latter includes the main international and regional procurement and other agreements. These are considered in chapters 4 to 6. (The EC procurement rules, however, will not be considered except in so far as they help clarify what may be permissible under other international and regional agreements.) In these chapters, we consider various aspects of international and regional agreements regarding public procurement and the parameters they set for the use of linkages. Chapter 4 considers the main requirements of these agreements before considering the extent to which the principal limits on coverage (thresholds, types of procurement, procuring entities covered, country-specific exceptions) permit SPP. In Chapter 5, we consider the extent to which the substantive obligations of the agreements (national treatment and MFN) restrict particular types of SPP. In Chapter 5, we also examine the extent to which the procedural obligations (regarding technical specifications, qualifications, and award criteria) restrict particular types of SPP, before considering, in Chapter 6, the general exceptions that permit what would otherwise not be legally permissible under the agreements. The report concludes, in Chapter 7, with some policy implications of the legal analysis in the previous chapters. We conclude, in particular, that a broad array of methods, which are compatible with the international and regional instruments on procurement, is available to incorporate sustainable development goals into public procurement.
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  • Fall '14
  • Delgermaa
  • International Trade, North American Free Trade Agreement, World Trade Organization, Government procurement

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