1. Introduction

The 4th International Conference on Public Procurement Law in Africa was held on 11-12 September 2023 in the beautiful city of Cape Town, directed by Prof Geo Quinot and Prof Sope Williams. The theme of the conference was “Public Procurement and the Sustainable Development Goals in Africa: Opportunities towards 2030”. It was a gathering of minds dedicated to exploring the intersection of public procurement and the Sustainable Development Goals (SDGs) in the African and international contexts.

During the conference, our early-stage researchers Aura, Chiara, Laura and Xinyue, had the opportunity to give presentations and receive feedback.  In the following sections, we will highlight the key findings from each of these presentations.

2. Highlights from the Presentations

Empowering SMEs in Public Procurement – A Cost-Benefit Analysis of Division into Lots and Reserved Contracts  (Xinyue Xue)

At the conference, Xinyue presented a study on supporting small and medium-sized enterprises (SMEs) in public procurement. Governments are increasingly considering SMEs in their public procurement laws and policies, recognising the vital role these enterprises play in the national economy. Xinyue’s research analyses two significant measures adopted by governments to promote SME participation in public procurement – dividing contracts into smaller lots and reserving contracts exclusively for SMEs. The division into smaller lots aims to broaden access to public procurement for a wider range of businesses, aligning individual contracts’ scale with smaller enterprises’ capacities without showing favouritism towards them. However, this measure does entail additional administrative costs, as the contracting authority needs to coordinate these lots. On the other hand, reserving contracts exclusively for SMEs guarantees their share in public procurement, but it restricts large businesses from bidding on these contracts, which may potentially hinder competition and impact value for money. Xinyue’s research aims to assess the costs and benefits of these two measures from the perspective of the contracting authorities, underscoring the importance of conducting a comprehensive cost-benefit analysis before implementation. Furthermore, governments should consider international or regional agreements that could limit their ability to provide preferential treatment to SMEs.

The Implementation of Circular Economy in Procurement to Fight Climate Emergency – Views from EU and South Africa (Aura Iurascu)

Aura delivered a presentation comparing the EU and South African (SA) legislative approaches to public procurement concerning the transition to a more circular economy (CE). This study’s motivation stems from factors beyond comparative interest. Trade agreements between the EU and SA account for considerable amounts: about 23% of SA’s total exports go to the EU, while 29% of imports originate from the EU, making SA, among the EU’s most important partners in Africa. Moreover, the increased circularity interest in the EU will inevitably affect extractive-based economies such as South Africa, and exploring CE provides opportunities for safeguarding economies against future resource constraints and market volatility.

Paper research question:  ‘How can public procurement law boost CE activities, and what legislative interventions (if any) are required to implement them?’

She provided an overview of what CE entails and its role within the EU and SA perspectives and uncovered the primary legal enablers and barriers. Aura contended that public procurement should be included as a legislative tool to implement CE. Lastly, she delivered some solutions, such as using a product-as-a-service approach to public purchasing, a type of procurement that focuses more on the ‘need’ to be fulfilled instead of the product ownership.

Towards Deforestation-Free Procurement? Reflections on the Interplay Between the New Deforestation Regulation and Public Procurement in the EU (Chiara Falvo)

Chiara presented the research on deforestation-free public procurement developed with her colleague Federica Muscaritoli. Their work explored the interplay between the new Regulation 2023/1115 on deforestation (EUDR) and public procurement in the EU.

After outlining the Regulation’s scope and due diligence obligations, Chiara delved into the penalties set out for its infringement, among which the temporary exclusion from public procurement processes stands out (Art. 25.2(d)). She explained that, in this respect, the EUDR reflects wider trends occurring in EU public procurement law. On the one hand, this sectoral initiative introduces a [procedural] mandatory requirement for sustainable public procurement, and, on the other, it calls on public procurement to enforce [due diligence] obligations set out outside the procurement field. 

She also argued that the EUDR creates an EU-wide disqualification system, as it introduces a new ground for economic operators to be excluded from the EU procurement system following a final decision taken outside a procurement procedure. She discussed that this also constitutes a new mandatory exclusion ground that contracting authorities must ascertain in ongoing procurement procedures. Finally, she recalled under which conditions contracting authorities may resort to the discretionary exclusion ground of grave professional misconduct to contribute to the fight against deforestation. In conclusion, she stressed the importance of leveraging other legal and non-legal tools to ensure deforestation-free procurements.

Enforcement of Labour Standards in Global Supply Chains through Public Procurement (Laura Treviño-Lozano)

Laura’s presentation first explores the “what,” “why,” and “how” behind the complex landscape of labour rights in public procurement. The “what” can procurement aim is accepted as either enforcement of minimum labour conditions or go beyond the legal requirements. The “why” has in turn been contested, with some advocating for public buyers to address supply chain abuses they may indirectly support, while others question the efficiency and administrative burden of such a role.

Her research moves forward the debate into the practical “how” could public procurement be used as a tool to enforce minimum labor rights, focusing on child labor, forced labor, and decent working conditions in global supply chains. Her insights are drawn from 40 interviews with local and regional public buyers and experts in Spain.

One of the major challenges Laura’s research uncovers is contract monitoring, which is the Achilles’ heel of procurement. Public buyers often struggle to verify compliance, leading to a lack of awareness about contract breaches. Furthermore, there’s a conflict of interest when it comes to reacting, sanctioning, or even terminating contracts, as it can disrupt vital services like catering for the elderly in nursing homes or patients in hospitals. Her research highlights the potential solution of technology to facilitate compliance monitoring, offering a lifeline to overcome resource and economic constraints.

3. Book Launch

A panel dedicated to the book launch, SUSTAINABLE PUBLIC PROCUREMENT OF INFRASTRUCTURE AND HUMAN RIGHTS: BEYOND BUILDING GREEN, edited by our lead researcher Olga Martin-Ortega and early-stage researcher Laura Treviño-Lozano. Amongst the panel was Sope Williams-Elegbe and three of the authors of the book: Geo Quinot explained his chapter on human rights and development considerations in procuring for Africa’s first World Cup, with key insights on the importance of the choice of the site for development of infrastructure like the Cape Town Stadium and on remediation: What happens “when the circus has left town”?. Besides Miriam Amanze presented her co-authored chapter with Ama Eyo on the finance of infrastructure procurement and worker’s rights on the role of regional (Asian and African) development banks. In addition, George Nwangwu presented his chapter in which he addresses access to infrastructure as a human right in itself and how to make public-private partnerships work for people. The book also has chapters written by Cristina Contreras Casado, Josua Loots, Annabel Short, Johanna Hoekstra Luis Felipe Yanes, William Rook and Daniela Heerdt. Overall, the editors presented five takeaways from the book:

1. There is a clear link between human rights, infrastructure and public procurement where the former should be at the core centre of the latter throughout the life cycle. Lack of infrastructure undermines human rights. In turn, well-planned and executed infrastructure is a key means of human rights enjoyment.
2. Human rights have to be thought beyond labour rights, i.e., the right to participation and the right to development. A broader scope of stakeholders has to be considered beyond workers, i.e. communities and end-users, particularly women as suppliers, as decision-makers, as workers but also as ultimate end users of infrastructure services.
3. There is a need for appropriate allocation of responsibility and accountability in public procurement when developing infrastructure. What happens and who responds when things go wrong and harm human rights?
4. Remediation of human rights abuses across the life cycle of infrastructure projects developed through public procurement remains a critical subject that requires significant further development.
5. Resilience and future generations must be key. Procuring infrastructure that will be able to meet not only current people’s needs but also those of future generations, including projects and service delivery that will be able to cope with climate change.

This blog post is written collectively by Aura, Chiara, Laura and Xinyue. Subscribe to our newsletter to keep updated on their research!