The Guardian’s assertions that (1) there are legal obligations to “integrate social considerations into public procurement” and (2) that encouragement towards community led procurement structures equates to localism in procurement terms gives it the catchy tag line “buy social, buy local”.
The impression which is created is that award criteria around horizontal policies are somehow now mandatory and that contracting authorities can restrict their procurement to suppliers from their own backyard.
A more detached and nuanced analysis reveals that this is an over-simplification.
The recent “Dutch Coffee” case (CJEU C-368/10) makes it clear that all award criteria are subject to the requirement of transparency (they must be clear, precise and unequivocal) and, in any event, they have to fit into the exhaustive list of factors which can be considered under the Public Sector Directive (Article 48) relating to the capacity of the tenderer. “Social” criteria often fail these tests (as they did in the Dutch Coffee case).
Similarly, a contracting authority could set a criterion around localism, but to the extent that it fails the principles of non-discrimination and equal treatment it will not survive.
Influential opinion within public procurement in the EU may be moving in broadly the direction the Guardian suggests, but we are not yet at a point where the motto “buy social, buy local” is a universally safe one to espouse…..