Public Purchasing in the Service of Realizing the Right to Food
* Rapport: The Power of Procurement Public Purchasing in the Service of Realizing the Right to Food. By OLIVIER DE SCHUTTER UNITED NATIONS SPECIAL RAPPORTEUR ON THE RIGHT TO FOOD. Briefing Note 08, April 2014
"This briefing note explains how public procurement can contribute to the progressive realization of the human right to adequate food, and how it already does so in a number of countries. It describes why public procurement matters for food and nutrition security strategies, and what it can achieve. It identifies which kind of public procurement should be encouraged, based upon country examples, and identifies five key principles that should be integrated into public procurement schemes and modalities, such as the need to target vulnerable groups; support food accessibility and adequate diets; ensure environmental sustainability; and include participation, accountability and empowerment as strong features of public procurement schemes. It reviews frequently cited ‘obstacles’ to the implementation of some of these principles, including budgetary constraints, institutional and legal issues, and demonstrates that there is room to develop ambitious public procurement policies and programmes. It also addresses potential constraints presented by the WTO Government Procurement Agreement. It ends with a number of recommendations to policy-makers."
1. Public procurement as a driver of food and nutrition security 3
2. Principles and examples for aligning public procurement modalities with the requirements of the right to food 5
Principle #1: Source preferentially from small-scale food producers ............7
Principle #2: Guarantee living wages as well as fair and remunerative prices along the food supply chain .......10
Principle #3: Set specific requirements for adequate food diets ...12
Principle #4: Source locally whenever possible and expect from suppliers that they produce food according to sustainable methods ........13
Principle #5: Increase participation and accountability in the food system ...13
3. Are there budgetary, institutional and legal obstacles? 15
a) The economics of sustainable food procurement .....................................15
b) The WTO Government Procurement Agreement ........................................16
4. Conclusion and Recommendations 19
"An increasing number of procurement schemes already bring territorial and seasonal dimensions into public procurement. Through home-grown school feeding programmes (HGSF) in Scotland and in Italy, local authorities have actively promoted local producers in ways that have escaped or circumvented the European regulatory constraints of ‘non-discrimination’. A majority of local products are used to prepare school meals in the Italian towns of Fanano, Ascoli and Borgo San Lorenzo. In Scotland, the reforms of school food procurement resulted in a 70% reduction in food miles.71 Japan also promotes local produce in its national school feeding programme. The practice known as chisan chishou (literally: local production and local consumption) connects schools to local farming or fishing communities."
"In 2008, the Dutch province of Groningen launched a public tender for the supply and management of automatic coffee machines. The tender stipulated, inter alia, that the coffee had to be produced by smallholders, who would be paid a minimum price, alongside a premium price for social development. The tender referred to products bearing the EKO and Max Havelaar labels. Douwe Egberts protested that these requirements effectively excluded them from the tender, because their coffee, certified by the UTZ label, did not fulfil all the stipulated conditions. The Dutch court found in favor of the province, stating that Groningen was free to pursue ethical and sustainability goals under both Dutch and EU public procurement law,140 in particular as specified in the 2004 Directive on public contracts (Directive 2004/18/EC of 31 March 2004)141 and that the conditions were laid down in a manner that was transparent and open.142 There were 20 other producers in the Netherlands who could have complied with those conditions, meaning that it did not restrict the field to just one producer. In other words, social and ethical linkages do not violate the fundamental principles of public procurement.
When the European Commission referred the Netherlands to the Court of Justice of the European Union in 2010, the Court expressly confirmed the compatibility with EU law of including fair trade and organic agriculture criteria in public procurement. The Court limited its criticism to the use of labels to achieve that end, ruling that the underlying criteria were not sufficiently precise and objective.
The new EU Directive on public procurements (2014/24/EU) adopted on 26 February 2014 (repealing Directive 2004/18/EC)146 does not merely confirm this case-law; it was in fact specifically designed to allow greater use of public procurements in supporting other policy objectives of the Europe 2020 agenda."
3. The Special Rapporteur offers the following recommendations:
States should align their public procurement policies and schemes with their duty to progressively realize the right to adequate food. This includes taking into account the set of recommendations put forward for contract farming in general, which the Special Rapporteur set out in 2011, but it goes beyond that.
Food procurement schemes should
1) source preferentially from smallscale food producers and actively empower them to access tenders;
2) guarantee living wages as well as fair and remunerative prices along the food supply chain;
3) set specific requirements for adequate food diets;
4) source locally and demand from their suppliers that they produce food according to sustainable methods; and
5) increase participation and accountability in the food system. The effectiveness of such public procurement policies and programmes would be maximized by fully integrating them under right to food national strategies and framework laws, and by coordinating them with other food security policies."