Direct Request (CEACR) - adopted 2022, published 111st ILC session (2023)

Labour Clauses (Public Contracts) Convention, 1949 (No. 94) - Costa Rica (Ratification: 1960)

Articles 2 and 5 of the Convention. Inclusion of labour clauses in public contracts. Supervisory measures and sanctions. In reply to the Committee’s previous comments, the Government indicates that a sworn declaration is required from all bidders involved in the procurement of goods and services for the Ministry of Finance. In the sworn declaration, contractor undertakes to ensure decent work and comply with fundamental rights and principles at work in line with the provisions of the ILO fundamental Conventions. In particular, the contractor undertakes to respect the principles regarding freedom of association and collective bargaining, the abolition of forced labour, the elimination of child labour and the elimination of discrimination in employment and occupation. Such conditions must be maintained throughout the duration of the contract. The Government provides a list of contracts awarded in 2019 which included the above-mentioned terms. The Government also indicates that other types of contract include other social and sustainable criteria such as an admissibility requirement or evaluation factors. For example, with regard to the rental of property by the Administration, such property must meet the requirements of the Act on equal opportunities for persons with disabilities regarding measures to eliminate physical obstacles in order to ensure accessibility for persons with disabilities. However, the Committee notes that the Government does not provide any examples of public contracts that include clauses ensuring to the workers concerned wages (including allowances), hours of work and other conditions of labour which are not less favourable than those established for work of the same character in the trade or industry concerned in the district where the work is carried on (Article 2(1) of the Convention). As regards the implementation of the “National policy on sustainable public procurement”, the Government states that the Directorate of Supplies and Administrative Contracting at the Ministry of Finance is responsible for coordinating the necessary actions for implementing this policy, and also for establishing the National Steering Committee on Sustainable Procurement. The Government adds that, in line with the principle of regulatory centralization and operational decentralization, each contracting administration is responsible for carrying out its administrative procurement procedures and for evaluating them, in line with the legislation in force and the guidelines established by the above-mentioned Directorate. The Committee also notes the adoption of Executive Decree No. 42709 of 9 October 2020, which provides for the adoption of measures to encourage the participation of enterprises, including small and medium-sized enterprises (SMEs) and enterprises in the social economy, in government procurement, according to location and sustainability criteria. In this regard, section 3 of the Executive Decree establishes the following criteria to be followed with respect to public works: “(a) encourage the participation of enterprises and formally constituted organizations in the social economy as individual bidders or as a consortium in public procurement; (b) promote procurement through enterprises or organizations in the social economy located in socio-economically disadvantaged areas or located in or close to geographical areas where the services to be provided by the contract are required; and (c) foster, through public procurement, the creation of employment for social groups in vulnerable situations, such as persons with disabilities, women and young adults, with the purpose of creating greater social inclusion”. Lastly, the Committee notes that the Government has attached to its report an inspection and prevention record from the inspectorate of the Central-Pacific region (Puntarenas office), which includes information on offences recorded at an enterprise which was carrying out public works for the Ministry of Health. However, the Committee notes that the Government does not provide any statistical information on the number and type of offences detected at the national level. The Committee requests the Government to send examples of contracts concluded by the public authorities that contain the labour clauses prescribed by the “Guide to labour criteria in contracting procedures in Costa Rica”, in particular those which establish the obligation to ensure to the workers concerned wages (including allowances), hours of work and other conditions of labour which are not less favourable than those established for work of the same character in the trade or industry concerned in the district where the work is carried on (Article 2(1) of the Convention). The Committee also requests the Government to send detailed, up-to-date information on the impact of Executive Decree No. 42709 of 9 October 2020 on contracts concluded by the public authorities, including the rate of participation of SMEs and social enterprises in government procurement. It also requests the Government to provide up-to-date information on the application of the Convention in practice, including extracts of inspection reports and information on the number and type of offences recorded throughout the country.