Luxembourg – Public procurement

Part II: Specific objectives of the National Action Plan 2020-2022

1. The state duty to protect human rights

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1.5. Increase the consideration of the UN Guiding Principles on Business and Human Rights by contracting authorities in their public procurement procedures

 

Context

The UN Guiding Principles on Business and Human Rights pay particular attention to the role of the state when acting as a business actor. Guiding Principle 6 states that “States should promote respect for human rights by enterprises with which they do business”.

Several studies (e.g. OECD, DIHR) show that actors responsible for public procurement lack technical knowledge on the integration of “business and human rights” standards such as the UN Guiding Principles on Business and Human Rights or the OECD Guidelines for Multinational Enterprises. According to the OECD, “the changing perception of the real cost of a product or service in relation to the potential environmental and social impacts requires a change in the culture of traditionally risk-averse public procurement officials. This means that in order to effectively integrate these standards into public procurement, in addition to the technical knowledge and skills required to manage the procurement process, government officials, as well as government auditors, should be trained to understand human rights considerations and their potential application to the technical stages of procurement.

Furthermore, according to the baseline study, there is no explicit guidance on human rights and the UN Guiding Principles in the general public procurement framework, which may mean that public purchasers are not sufficiently aware of the potential risks to human rights. According to this study “clear guidance should be provided to public purchasers on business, human rights and the UN Guiding Principles”.

Public procurement is governed by European guidelines for European bidders and for bidders from countries that are party to the WTO Agreement on Government Procurement (GPA). For countries outside the GPA, discussions are currently taking place under the International Procurement Instrument (IPI).

 

Objectively verifiable indicators	–        National Baseline Assessment (NBA) [Etude de base]: –        Inclusion of references to the Guiding Principles and human rights in public procurement procedures –        Incentives for introducing such references
Verification sources	×        Tender Board [Commission des soumissions] ×        Communal administrations [Communes]
Expected results	×    Include commitments to respect the Guiding Principles and human rights in bidding documents ×    Increase in the number of contracts awarded to bidders that comply with the UN Guiding Principles on Business and Human Rights ×    Assess the potential human rights impact of integrating respect for human rights into public procurement on the basis of existing studies. For instance: https://swedwatch.org ×    Organise training for contracting authorities involving all stakeholders ×    Establish procurement materials and guidelines at the level of the different ministries
Implementation timeline	×        Contact with the Tender Board [Commission des soumissions] during the 1st trimester of 2020 ×        Duration of NAP 2
Means of implementation	×      MAEE (Ministry of Foreign and European Affairs) ×      Ministry of Mobility and Public Works [Ministère de la Mobilité et des Travaux publics] ×      Tender Board [Commission des soumissions] ×      Communal administrations [Communes]

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1.10. Preparation of the implementation in Luxembourg of the EU regulation on conflict minerals

 

Context

The legislative challenge in 2020 is to create a regulatory framework to implement the EU Conflict Minerals Regulation. Indeed, the regulation on minerals from conflict zones will enter into force on January 1st 2021. It will be essential to involve the various stakeholders (business and civil society), and in particular those represented in the Business and Human Rights Working Group, in the reflection on the implementation of the Regulation. In this context, it should also be recalled that the government was invited by a motion of the Chamber of Deputies, in the context of the vote on the Public Procurement Act in April 2018, “to ensure that public procurement in the future incorporates the due diligence criterion at the level of metals affected by Regulation (EU) 2017/821 of the European Parliament and of the Council of 17 May 2017 (tantalum, tin, tungsten, gold).”

 

Objectively verifiable indicators	×        Benchmark: NAP 1
Verification sources	×        NAP 1 Implementation Report ×        Follow-up in the Working Group on Business and Human Rights [GT « Entreprises et droits de l’Homme »]
Expected results	×    Raising awareness among stakeholders ×    Implementation of the Regulation according to the timetable indicated ×    Predictability and legal certainty, especially for businesses
Implementation timeline	Depending on the entry into force of the Regulation
Means of implementation	×      MAEE (Ministry of Foreign and European Affairs), Directorate for European Affairs and International Economic Relations

 

The 2020-22 NAP states the second edition of the National Action Plan complements the first NAP. Additional information about the first NAP can be found here.