Francesco De Rosa

1. Francesco De Rosa PUBLIC PROCUREMENT AND PUBLIC-SOCIAL PARTNERSHIP

2. Procurement Procurement is the whole process of purchase by the public sector from third parties covering goods, services and capital projects.

3. Total public procurement in the EU is estimated at about16% of the Union’s GDPor €1500 billion in 2002.Its importance varies significantly between Member States rangingbetween 11% and 20% of GDP. 78% of successful tenderers (above thresholds)under EU Directives are SMEsPublic procurement is subject to Community and international rules althoughnot all public procurement is subject to these obligations. Under these rules public sector procurement must followtransparent open proceduresensuring fair conditions of competition for suppliers.

4. The legislative package of public procurement Directives, approved in 2004 by the European Parliament and the EU's Council of Ministers, will helpsimplify and modernise procurement procedures, for example by facilitating electronic procurement in the public sector.

5. DIRECTIVE 2004/17/ECof the European Parliament and of the Council, 31° March 2004Coordinating the Procurement procedures of entities operating in the water, energy, transport and postal services sectors.DIRECTIVE 2004/18/ECof the European Parliament and of Council of the of 31st March 2004Coordinating the procedures for the award of public works contracts, Public supply contracts and public service contracts.

6. The principal aim of the Directives is to ensure that taxpayers' money is spent in such a way that"best value for money"is achieved• They offer scope for contracting authorities toconsider social and accessibility issues…• …and can positively influence theinclusion and employmentof people with disabilities and unemployed people or the safety of the workplace

7. Key elements• The EU Directives refer specifically totechnical specificationsrelating to accessibility• They allow public authorities to imposecontract performance conditionslike environmental requirements or accessibility requirements or the obligation to employ a certain percentage of disabled people (social clauses)• The Directives include rules on the possibility to reservecontracts for sheltered workshops• Accessibility and employment of disabled people can beaselection criterion

8. Achievements of the legislative package:Simplification- “Three in one” approach for supplies, works and servicesModernisationE-procurement- Electronic means for communication- Reduction of time for data transmission and transaction costs- Greater transparencyFlexibility- Definitions in terms of performance and functionality- Reference to European or other international standards - Environmental management standards as eligibility criterion - Combination of restricted and negotiated procedure

9. Social Enterprises and The 2004/18/EC DirectiveArticles 7, 19, 26, 29 and 53.Art.7This Directive shall apply to public contracts […] which have a value exclusive of value-added tax (VAT) estimated to be equal to or greater than the following thresholds:[…]EUR 249 000for public service contracts awarded by any contracting authority in respect of the services listed in […] theAnnex II B(list of health and social services)

10. Social Enterprises and The 2004/18/EC DirecitveArticles 7, 19, 26, 29 and 53.Art.19- Member States mayreserve the right to participate in public contract award procedures to sheltered workshops or provide for such contracts to be performed in the context of sheltered employment programmeswhere most of the employees concerned are handicapped persons who, by reason of the nature or the seriousness of their disabilities, cannot carry on occupations under normal conditions.- The contract notice shall make reference to this provision.

11. Social Enterprises and The 2004/18/EC DirecitveArticles 7, 19, 26, 29 and 53.Art. 26Contracting authorities may lay down special conditions relating to the performance of a contract, provided that these are compatible with Community law and are indicated in the contract notice or in the specifications.The conditions governing the performance of a contract may, in particular, concern social and environmental considerations.

12. Social Enterprises and The 2004/18/EC DirecitveArticles 7, 19, 26, 29 and 53.Art. 29In particularly complex contracts, Member States may provide that where contracting authorities consider that the use of the open or restricted procedure will not allow the award of the contract, the latter may make use of thecompetitive dialoguein accordance with this Article. Contracting authorities shall open, with thecandidates selectedin accordance with the relevant provisions of Articles 44 to 52, a dialogue the aim of which shall be to identify and define the means best suited to satisfying their needs. They maydiscuss all aspects of the contractwith the chosen candidates during this dialogue.

13. Social Enterprises and The 2004/18/EC DirectiveArticles 7, 19, 26, 29 and 53.Art. 53Without prejudice to national laws, regulations or administrative provisions concerning the remuneration of certain services, the criteria on which the contracting authorities shall base the award of public contracts shall be either:(a) when the award is made to thetender most economically advantageousfrom the point of view of the contracting authority, various criteria linked to the subject-matter of the public contract in question (i.e. quality, price, technical merit, aesthetic and functional characteristics, environmental characteristics, cost-effectiveness, after-sales service and technical assistance, etc.), (b) the lowest price only.

14. Future perspectives • Explicative guidelines • Framework Agreements • Competitive Dialogue • Communication on Public Procurement • Certificates on eligibility criteria and lists of approved economic operators • Charts with available documents and issuing authorities in Member State

15. Future perspectives • Public-Social Partnerships • Institutional PSP • Delivery Partnerships • Development Partnerships • Strategic Partnerships • Concessions • “Green Procurement”  • Handbook • Good practices document envisaged

16. Public-Social Partnerships On the basis of a Green Paper, the European Commission has launched a debate on the desirability of adaptingCommunity rules on public procurement and concessions to accommodate the development of public-social partnerships (PSPs). Over the last ten years PSPs have been developing in several member states. in particular in the areas of transport, public health, education, public safety, waste management. The choice of a private partner by a public authority must be made in accordance with Community rules on the awarding of public contracts. However, there is no specific system under Community law for PSPs andthe Community rules on awarding public contracts are applied to PSPs with differing degrees of intensity.

17. Public-Social Partnerships The Green Paper addresses various topics directly linked to the public procurement aspect of PPPs, in particular: • the framework for the procedures for selecting a private partner, and in particular the advantages in this context ofthe competitive dialogue procedure, which allows public authorities to hold discussions with applicant in order to identify the solutions best suited to their needs; • setting up of PPPs on the initiative of the private sector; • the contractual framework and contract amendments during the life of a PPP; • subcontracting.

18. Public-Social Partnerships PSPs contributes to the creation of trust and confidence between local actorsand provides more effective pathways towardsinclusive community based sustainable development. Social Economy is a strategic actor in setting up PSPs for inclusive community based sustainable development. Public authority can benefit from theknow-how and working methods of the Social Economy sector.

19. Public-Social PartnershipsKey aspect • Public nature of the SE(i.e. law social co-ops in Italy art.1 Their purpose is to pursue the general community interest in promoting human concerns and in the social integration) • responsabilization of the SE towards the final • Beneficiaries • Flexibility (updating of the agreement to the changing of the context) • Long term programs

20. A useful tool in Italy Art.5 of the Italian Law n.381/1991: “As a special dispensation to public procurement rules, public authorities can sign grant agreement […] for the provision of services other than social, health and education services if these services have as a main purpose the creation of job opportunities for disadvantaged people”.

21. The conventions in the 381/91 LawThe Law refers to theconvention as a method to qualify the relations between Social Co-ops and Public Authorityas something different by the contracts in general and by the Public Contracts in particular.It creates adifferentiate situation between A-type and B-typeco-operatives:A-Type: refers to Regional rulesand delegating the Regional Authority to establish and adopt convention-sample.B-type: the Law clearly recognizefor these enterprisesthe possibility of exceptiontowards the rules concerning Public Contracts.

22. The conventions in the 381/91 LawAccording to the concepts of transparency and competitiveness: The conventions regarding social and sanitary services foreseen an explicit comparison between the enterprises (all kind of enterprises)on crucial indicators:quality of the project, organizational capacity, experience, linkage with the territory, etc. Regarding B-type co-ops, the Law foreseenspecial direct contract (without call for tenders)under the limits established by EU, andsocial clauses (reserved quotas)in tenders upper the limits, anticipating with these practices the European Directive.

23. The Framework of PSPs in Italy Law 328/00: Law on Social Integrated Services basic areas of intervention Valorization of the role of the family Overcoming of the economic desease Network for social inclusion Overcoming of the admission in hospital or in special structures

24. Law 328/00: the actors Public Bodies Associations Social Co-ops Who provide services Volunteer Organizations Patronage organizations Social Foundation

25. Law 328/00 The programming and the organizing of the system, according to the principles of subsidiariety, are to the Local and National Public Authority that must facilitate non profit organizations. These, together with Public and Private Subject provide to the management and supply of the services. Social Solidarity have to be promoted increasing the value of the iniciatives of persons, families, self-help and mutuality. (Art.1)

26. Implementation of the Public Procurement Directives in the UK • UK Policy • Requires all purchases of goods and services to be based on value for money, having due regard to propriety and regularity • (Value for money = "the optimum combination of whole life cost and quality (or fitness for purpose) to meet the customer's requirement“)

27. Government Strategy • Government’s sustainable development strategy, “Securing the future” commits the UK to a goal of ‘be(ing) recognised as amongst the leaders in sustainable procurement across EU member states by 2009’ • 3 areas where social enterprises may offer better value for money than other suppliers are: • meeting more than one objective with the same expenditure • incorporating social and environmental factors into decision making is it possible to maximise the effectiveness of public procurement in achieving wider policy objectives, from job creation and equal opportunities, to fair trade and environmental issues.

28. Government Strategy • having a competitive advantage in delivering particular goods and services • i.e. SE may be better placed than competitors to engage with people from disadvantaged or excluded communities. • delivering innovative solutions and stimulating new markets • SE have a strong experience in innovation and market making – i.e. some of them have been providing innovative solutions for the health service.

29. Government Strategy • Reference Manual • • Handbook • with background information • for decision makers and public servants • about the benefits of accessibility in the built environment for all citizens • and the supporting role that Public Procurement can play in achieving this. • • Toolkit • with a practical guidance • for contracting authorities • to include certain procedures and technical requirements in procurement, • so as to ensure that accessibility criteria are met in design and construction work.

30. Government Strategy • Social Clauses • there is growing interest in the incorporation of social clauses into contracts. • The use of social clauses entails multiple objectives being delivered if such clauses are not the primary purpose of the contract. • They may be funded by a separate part of the organisation which has the agreement to incorporate such outcomes alongside other.

31. Public-Social Partnerships • Public-Social Partnerships • Delivery Partnerships • Development Partnerships • Strategic Partnerships