Inclusion of social considerations in award criteria for public procurement procedures legitimate
Last week in the North Holland case the Court of Justice decided that EU rules allow public authorities to evaluate tenders for public contracts using criteria based on considerations of a social nature: âwhich may concern the persons using or receiving the works, supplies or services which are the object of the contract, but also other personsâ.
In 2008 the Province of North Holland published a tendering procedure for a public contract for the supply and management of automatic coffee machines, which referred to products bearing the EKO and Max Havelaar labels. The Commission referred the Netherlands to the Court of Justice in 2010 for non compliance with the EU public procurement rules.
The Court of Justice in its ruling stated that it is possible to refer in award criteria âto the fact that a product is of fair trade originâ (example of social consideration). Social considerations are criteria that are used to promote social objectives that go beyond the functional objective of the public procurement procedure: in this case, the functional objective is the purchase of automatic coffee machines, the social consideration is the fair trade criteria.
This ruling marks a significant step in the development of the use of social considerations in public procurement, because it clearly states that social criteria can be used as award criteria (award criteria define the criteria according to which a tender has to be evaluated and give a weight to each criterion).
Previous case law provided that environmental considerations can be included in award criteria. The same reasoning could have been extended also to social considerations, but there was no jurisprudence to confirm this.