Observation (CEACR) - adopted 2012, published 102nd ILC session (2013)

Labour Clauses (Public Contracts) Convention, 1949 (No. 94) - Morocco (Ratification: 1956)

Article 2 of the Convention. Inclusion of labour clauses in public contracts. For several years the Committee has been drawing the Government’s attention to the fact that Moroccan legislation lays down no requirement to include labour clauses – as prescribed by the Convention – in public contracts. In its latest report the Government refers to section 12 of the general administrative clauses for public contracts (CCAG-T), approved by Decree No. 2-99-1087 of 4 May 2000, which stipulates that in the conclusion of public contracts, performance bonds are established in an amount determined in the specifications to be produced by each bidder. The Government states that the purpose of requiring such a bond is to ensure that bidders fulfil their commitments, otherwise the contracting authority shall make a deduction from the bond to compensate workers adversely affected, in accordance with section 20(5) of the CCAG-T. The Government again refers to section 20 of the CCAG-T, which sets out the formalities and prescriptions applying to the hiring of workers and under which the contractor must show that the wages paid to the workers are not lower than the statutory minimum wage. The Government also refers to section 25 of Decree No. 2-98-482 of 30 December 1998 laying down the conditions and forms of government procurement contracts, and to provisions requiring bidders to be members of the National Social Security Fund, to which they must submit regular statements of wages.

The Committee notes, in this connection, that the abovementioned provisions of two decrees mentioned above are not sufficient to ensure application of the Convention, since they merely remind bidders that they are required to comply with the labour legislation. They are in fact pre-qualification criteria that contractors and suppliers must meet in order to comply with the prescriptions in force in Morocco. The Committee refers in this context to paragraphs 117 and 118 of its General Survey of 2008 on labour clauses in public contracts, in which it pointed out that the Convention does not relate to some general eligibility criteria or pre-qualification requirements of individuals or enterprises bidding for public contracts. Furthermore, certification offers some proof about tenderers’ past performance and law-abiding conduct but carries no binding commitment with regard to prospective operations as labour clauses do.

What the Convention does require is that tenderers be informed in advance, through standard labour clauses in the tendering documents that, if they succeed in obtaining the contract, they will have to apply wages and other working conditions that are at least as favourable as the highest standards established for the same district by collective agreement, arbitration award or national laws or regulations. Noting therefore that the legislation on public contracts still falls short of the requirements of the Convention, the Committee again asks the Government to take the necessary steps without further delay to bring the national legislation into line with the Convention.