Observation (CEACR) - adoptée 2012, publiée 102ème session CIT (2013)

Convention (n° 94) sur les clauses de travail (contrats publics), 1949 - Bulgarie (Ratification: 1955)

Article 2 of the Convention. Insertion of labour clauses in public contracts. Further to its previous comments, the Committee notes the information contained in the Government’s report concerning the latest amendments to the Public Procurement Act and implementing Regulations and Ordinances, especially as regards the appeals procedure and the grounds of nullity of public procurement contracts. It also notes the Government’s explanations concerning the assistance to tenderers provided by the Public Procurement Agency (PPA), including through direct consultations, written replies to individual requests, hot phone lines and electronic services.

The Committee observes, however, that the Government’s report does not contain any references to legislative or administrative measures implementing the specific requirements of the Convention, the only relevant provision in the current legislation being section 56(1)(11) of the Public Procurement Act which requires tenderers to declare when bidding that they have taken into consideration the minimum labour cost requirements. The Committee further notes that the standardized public procurement contract available on PPA’s website does not contain any clauses concerning the terms of employment and working conditions of workers engaged in the execution of public contracts.

The Committee therefore regrets that the Government has still not taken any steps to give effect to the basic requirements of the Convention, namely: (i) the insertion in all public contracts falling within the scope of Article 1 of the Convention of labour clauses – drafted after consultation with employers’ and workers’ organizations – ensuring to the workers concerned wages and other working conditions not less favourable than those established for work of the same character in the same area by collective agreement, arbitration award or national laws or regulations; (ii) the notification of the terms of the clauses, by advertising specifications or otherwise; (iii) the posting of notices in conspicuous places at the workplace with a view to informing the workers of their conditions of work; and (iv) the effective enforcement through a system of inspection and adequate sanctions, including the withholding of contracts and the withholding of payments, for failure to observe and apply the provisions of labour clauses.

In this connection, the Committee wishes once more to refer to its General Survey of 2008 concerning labour clauses in public contracts, in which it indicated that the idea behind the adoption of minimum labour standards in the field of public procurement is that public authorities should concern themselves with the working conditions under which the operations in question are carried out. The concern stems from the fact that government contracts are usually awarded to the lowest bidder and that contractors may be tempted, in view of the competition involved, to economize on labour costs. The Committee also indicated that the insertion of appropriate labour clauses has the effect of setting as minimum conditions for the contract standards that are already established within the locality, and that labour costs are thus removed from competition between bidders (paragraphs 2 and 40). While recognizing the Government’s efforts in promoting conditions of fair competition and transparency in public procurement operations, the Committee stresses that, under this Convention, the Government is also under the obligation to ensure that workers employed by a contractor and paid indirectly out of public funds enjoy wages and conditions of labour which are at least as satisfactory as the wages and conditions of labour normally established for the type of work concerned, which implies that local standards higher than those of general application should be applied, where they exist. The Committee again urges the Government to take without further delay all necessary action in order to give full effect to the Convention and to keep the Office informed of any progress made in this regard.