Guiding principles on social clauses in public procurement in the Belgian context
GOOD PRACTICE FROM FLANDERS - BELGIUM
Cluster: Growth and development
Author: Herman Raus (Expertise Centre on Social Europe) for ESF-Flanders
1. Context and history of how the good practice has been developed
The specific Belgian institutional framework.
The realisation of this guide has to be seen in relationship with the specific Belgian institutional framework, in which social economy (social entrepreneurship) is linked to both the federal and the regional authorities.
- The all over policy on social economy is mainly a regional responsibility, which explains the differences between the three regions with regard to the legislation, the development path and position of the sector.
- The subsidies however are granted according to the federal legislation, being related amongst others to the social security system.
Reference should be made to the first paper (comment on strategic partnership) that gives information on the new decree (law) concerning support of the social economy as decided by the Flemish government.
The way the social economy sector is being organised reflects this specific institutional framework, with representative umbrella organisations having a very strong regional focus:
- VOSEC: representative umbrella organisation, dealing with sector support and policy making in Flanders (changed by the new decree of the Flemish government);
- SAWb: representative umbrella organisation covering the Walloon region and mainly focussed on the support of enterprises;
- Concertes: representative member organisation mainly oriented to policy making in both the Walloon and Brussels region;
- Febio: federation of work integration enterprises and organisations specifically working in the Brussels region, regardless of the language used in the organisation.
The federal Working Group on social economy.
Although the political weight as far as social economy is concerned is located on the regional level, a permanent federal Working Group on social economy is functioning since more than ten years. Both SAWb and VOSEC have insisted on the creation of a platform where the regional representative bodies in the field of social economy could work together and have a permanent consultation opportunity with the federal administration. The Working Group was and still is hosted, chaired and supported by the Federal Administrative Department responsible for Programs in the field of Social Integration, which is the public administration responsible for social economy on the federal level.
Within this context the group meets on a regular basis in order to exchange experiences and ideas, analyse evolutions, formulate recommendations to the Secretary of State responsible for Social Integration and Poverty Reduction social economy and design common cross regional project ideas with a focus on strengthening the social economy. The European policy framework and its transfer to the Belgian reality are considered as special points of interest. This explains the participation of Social Economy Europe as third partner in the Working Group.
As explained more in detail in the next point of this paper the Guide "Guiding principles on social clauses in public procurement in the Belgian context" is the most recent result of this deliberate collaboration within the Working Group.
From project design to achievement
Opportunities created by the Working Group
The collaboration between the Secretary of State responsible for Social Integration and Poverty Reduction and the two umbrella organisations of the social economy was a key element in the achievement of this instrument. Within the Working Group needs and opportunities have been discussed on a regular basis over the last 10 years, usually leading to specific projects and initiatives covering both regions in the country and financed by the department of the Secretary of State.
One of these projects allowed the social economy sector to be directly involved in the activities related to the Belgian presidency of the European Union in 2010, striving for a stronger investment in the social economy, considered by the sector as an evident leverage to achieve the 2020 agenda of the Commission.
Focus on European Funds and social clauses
As a follow up of this successful initiative two new issues were stressed within the Working Group: on the one hand the need to build up the knowledge on European Funds and Programs and to increase the use of the opportunities offered by those systems within the social economy secor as a whole; on the other hand the need to focus on the particular issue of social clauses, being an area of opportunities in which the Belgian and regional governments revealed themselves as very bad "pupils".
Related to the first issue a guide covering the European Programs and Funds of particular interest for the social economy has been developed by VOSEC in collaboration with the Expertise Centre for Social Europe (KCSE), accompanied by several informative conferences.
On the issue of social clauses a conference took place on 29th of September 2011, called "Social economy reinforced through public procurement: illusion or nearby future?". This common initiative of the umbrella organisations and the Federal Administrative Department responsible for Programs in the field of Social Integration was attended by a large audience (150 persons coming from public and private organisations) and informed on key issues related to this subject: information on public procurement, social clauses, experiences in Belgium and abroad, the role of local authorities, the regional policies on this matter, the reform of the European legal framework on public procurement.
The social clauses project designed, accepted and funded
At the end of the conference the public itself insisted on the proposal to develop a practical guide covering the issue of social clauses in public procurement. Some additional inquiry within the sector done, the Working Group decided to address a project proposal to the Secretary of State.
The Secretary of State accepted the project proposal which was granted a budget of 65.000 euros, thus creating the possibility to involve the two specialists as mentioned earlier.
At the occasion of a Conference entitled "Has the social economy been put on the agenda of the European Union" (6th of June 2013) the Guide has been presented.
2. Summary of main characteristics of good practice approach
The Guide focuses on the existing legally framed instruments allowing public authorities and public enterprises to use social employment and social integration or inclusion as criteria for public procurement, starting from the European legislation.
The authors consider a coherent application of the existing instruments as an important opportunity to contribute to closing the social gap throughout employment creation for vulnerable persons.
To achieve the European 2020 agenda in the field of social inclusion and poverty reduction public authorities should go beyond pilot projects and experiments and apply social clauses in a systematic way.
The Guide is published in three languages (French, Dutch and German) thus serving the three Belgian communities.
Specific goals of the Guide
Inform, sensitize and stimulate public authorities to make use of social clauses in public procurement, thus deliberately increasing and strengthening the social inclusion of disadvantaged persons in a structural way by means of creating employment within the social economy.
Create an additional, long term and economical viable perspective for local social enterprises in terms of employment creation through applying the available range of opportunities in the field of social clauses in public procurement.
Support the public authorities in this particular field by means of a well designed and easy applicable tool:
- making accessible the complicated and still unfamiliar European legislation on social clauses as well as its transfer into the federal and regional legislation;
- explaining in a systematic way the different opportunities in this field to be used by public authorities;
- setting up a methodology showing the successive steps in implementing social clauses in a correct and successful way;
- showing concrete examples and experiences in order to convince and reassure public authorities as far as juridical and technical applicability of social clauses in public procurement are concerned;
- stimulating the exchange of good practices in the field of socially oriented public procurement policy.
Structure and content of the Guide
Ten formulas are put at disposal of the reader
These ten formulas correspond with the different opportunities concerning social clauses in public procurement that are foreseen in the European legislation:
- Public orders suitable for social clauses in an obvious way;
- Reservation of an order for social economy enterprises;
- Adjudication of an order that is divided in parcels;
- Definition of multiple objects in a public order;
- Definition of technical specifications of social kind;
- Definition of social adjudication criteria;
- Definition of social selection criteria;
- Definition of social execution conditions focussing on the training of employment seeking and/or disadvantaged groups;
- Definition of social execution conditions focussing on employment;
- Reservation of the execution of a public order;
- Framework agreements.
- Useful instruments (addresses, websites,…).
- Public initiatives undertaken in Belgium (federal level, Brussels, Flanders, Wallonia, German speaking community): challenges and perspectives.
- Abbreviations and glossary.
During the design process the involved organisations and specialists invested a lot of time and discussions in working out a good methodology, taking into account the complexity of this issue as well as the poor knowledge and experience in the field of social clauses on behalf of contracting public authorities and public enterprises.
For each of the 10 "formulas" the guide provides information on five aspects:
- The European and Belgian legal framework;
- Specific juridical national and regional regulations providing the legal basics related to the "formula";
- An overview of the important items related to the different steps or stages as foreseen in the procedure and deserving a specific attention;
- Eventually a model of social clauses that simply can be copied or can be adapted to particular situations and/or needs.
- Examples of social clauses taken from practical experiences in the field.
The Secretary of State, VOSEC and SAWb, being the key stakeholders, have associated Concertes and two thematic specialists: Senselia (Raphaël Dugaillez) and Public Procurement Management (Bert Baeyens).
3. Evidence/Justification for Good Practice
Several elements justify the publication of a Guide on social clauses. We would like to point out 5 observations or arguments.
- Each year public procurement in Belgium equals 5 to 10 % of GDP, which is almost 25 billion euros. Analyses indicate however very clearly that the use of social clauses in public procurement and social buying is far underdeveloped in Belgium, meaning that social economy remains to a large extend excluded from public procurement influencing in a negative way the long term employment of vulnerable and disadvantaged persons. Nevertheless there are good examples such as: the digitization work ordered by governmental bodies (documents, movies, books,…) and carried out by sheltered workplaces; catering services for local governments executed by social workplaces; maintenance of public schools;… Being a major tool to achieve growth, development and sustainable employment in social enterprises the authors decided to stress the important opportunities of social clauses in public procurement through an intensive campaign.
- One can also observe incorrect use of social clauses by local authorities, leading to situations in which social enterprises wrongfully loose public offers thus putting at risk their economic growth and employment rate. More information and sensitization are needed.
- Most (local) authorities and public enterprises lack the human and financial resources necessary to build up knowledge and experience in different areas. European legislation is unfortunately one of these areas. Given the ongoing and further expected budget cuts governments (at all levels) have to face a shift in this situation is not to be expected in the nearby future. This means that the opportunities offered by social clauses remain unknown to civil servants, to whom training facilities on this particular subject are not or cannot be granted. This situation frames to a large extent the growth and/or sustainability of social enterprises, while social clauses could be a strong leverage for social inclusion and economic growth.
- Within the social economy sector itself and at enterprise level one can observe a similar situation: lack of resources, lack of knowledge on European issues, no awareness about the opportunities of social clauses,…
- Finally the federal and regional governments in Belgium remain very slow in transferring European legislation into their own rules.
This broader picture was considered by the Working Group as a strong justification for editing a guide on the subject of social clauses in public procurement, a task that in the opinion of its members could only be achieved in a proper way at the national level.
The major outcome is the publication of a high qualitative and exhaustive Guide, using 107 pages to explain in a pedagogical and systematic way the issue of social clauses in public procurement.
5. Strengths and weaknesses
- As far as the Federal government is concerned one should stress the policy of choosing competent and representative (private) organisations, having systematic contacts with the involved economic sector, to elaborate an instrument.
- Given the lack of knowledge on European legislation and on the particular subject of the Guide the strong involvement of thematic specialists was not only necessary to produce the Guide but created a strong guarantee for delivering a correct instrument of high quality.
- As far as the umbrella organisations are concerned, their position as partners of the federal government in addressing concrete needs and in designing and elaborating concrete policy measures had been strengthened. This might be concerned as an investment in further collaboration opportunities.
- Through publishing this Guide they strengthened their position and expertise as support organisation. Moreover throughout this instrument they can put a stronger focus on the importance of innovation and dynamic management in achieving growth within the social enterprises.
- The Guide creates new opportunities for collaboration within the sector and with enterprises and allows the umbrella organisations to contact new "clients": local authorities and public enterprises can be offered a strong tool, providing interesting answers to real challenges at local level. At the same time the Guide gives the opportunity to promote social economy as a partner in economic viable local policy and to facilitate new types and initiatives of collaboration at local level
- The involved specialists became a channel to share their knowledge and experience.
- In our opinion the publishing of a guide should only be considered as one step in a larger process. Unfortunately most projects end at this stage. Convincing local authorities or other potential users to make use of the guide is a process on itself that usually is neglected in the process design and the financing of projects.
- In the new collaboration agreement between VOSEC and the Flemish government a campaign on social clauses, making use of the Guide, has been scheduled. Local authorities and social enterprises should be addressed in provincial gatherings in order to become information on social clauses and to discuss collaboration agreements based on the social clause opportunities.
6. Comparisons with other experiences
Reference can be made to the "Social Value Act", which gained Royal Assent in March 2012 in the United Kingdom and went live on 31st of January 2013. The Public Services Social Value Act states that public commissioners must consider how to improve the economic, social and environmental well-being of the area served by them through procurement.
This particular case – which was presented and discussed at the peer review in Malmö – will be published as a separate document by the Social Economy Network.
7. Overall assessment
We believe that focussing on the European level and its opportunities for strengthening the social economy is still to much been neglected and should be considered in every country as a priority by all representative and support organisations in the social economy.
Through translating European legislation by means of practical instruments we can enable social economy enterprises in building up economic and financial independency and growth as well.
Once the guide published a campaign should be organised involving the key stakeholders (local authorities and social enterprises) and offering training and contracting. One should not underestimate the difficulties for the concerned persons in overcoming all thresholds related to new and complex subjects.
Once umbrella organisations in different countries are investing in a systematic and consulted way in issues like social clauses, the position of the social economy at European level might get more visible and stronger.
The future support of ESF agencies in processes dealing with the transfer of European rules in accessible and practical instruments to be used within the social economy sector and the organisation of adapted campaigns to promote them should be discussed.
Specific assessment after the Malmö peer review
Questions on guidance and promotion
- Question: will the targeted "clients" become guidance on how to implement the guide?
- It has been scheduled to organise a broad promotion campaign and to put specialised consultants – those involved in the production of the Guide – at the disposal of the clients, being public authorities and social enterprises;
- As a major stakeholder SAW-b (umbrella organisation in the French speaking part of Belgium) has already organised several meetings to promote the guide, addressing local and regional public authorities and social enterprises as well. Meetings were set up in the Wallonia region and the German speaking part of Belgium.
- Given the institutional changes in Flanders it is not clarified yet whether a similar campaign will be enrolled.
- Expert advisers in this particular area are very few, which is an additional challenge in the development of expertise in the field of public procurement through social clauses and which has to be faced by the federations, the social economy umbrella organisations in association with the city/municipality-association;
- The aim of the Guide is to contribute to the implementation of social clauses in public procurement in a systematic way.
- Question: can this Guide result in a stronger collaboration amongst social economy enterprises/social enterprises?
- Collaboration between SE will be addressed within the promotion campaign as one of the major opportunities/issues/difficulties if one wants to be successful;
- The setting up of collaboration between social enterprises – enabling enterprises to obtain large(r) contracts - will be presented as one of the key conditions for longer term and sustainable achievements;
- It is obvious that the building up of Consortia would be a strong – if not one of the only –instrument(s) for success in the field of public procurement through social clauses;
- The Guide and the related campaign will create new and/or stronger collaboration between local authorities and social enterprises.
- Question: can this Guide play a consistent role in promoting social enterprises as such?
- It is evident that through promoting the Guide social enterprises as such will be highlighted: their goals, strengths, economical and social development opportunities, win-win situations,…;
- Umbrella organisations can and will play an important role in facilitating collaboration and contracting.
More technical questions
- Question about the availability of the Guide in other languages?
- An eventual translation of the Guide in English and other languages can be discussed with the Belgian Secretary of State, who has the ownership of the Guide;
- The Guide has already been translated in German. The question whether this version can be put at the disposal of the Network will be raised as well.
- Technical questions:
- The European content concerning “Buying Social” are referred to in the Guide.
- In a similar way the issue of "Restrictive measures" are explained in the Guide;
- "Quality assurance" is worked out as an element within the chapter on procedures, given the fact that quality as such still is an important challenge for social enterprises;
Question on capacity building in the particular field of social clauses and procurement.
- The Guide can be used as an instrument for capacity building on behalf of public authorities;
- It is without saying that the needs on capacity building within local authorities (often to small to absorb all different kinds of legislation) are huge and could be successfully addressed throughout promoting and using this Guide and of course through creating new collaboration agreements.
You can consult the Guide in the French version using the following link:
On this page the first line indicates in red: “guide pédagogique et juridique des clauses sociales en Belgique”. By clicking on this line you will have access to the guide online.