Observation (CEACR) - adopted 2007, published 97th ILC session (2008)

Labour Clauses (Public Contracts) Convention, 1949 (No. 94) - Bulgaria (Ratification: 1955)

The Committee notes the information contained in the Government’s report, in particular the adoption of the new Public Procurement Act (SG No. 28/06.04.2004) and its implementing Rules (SG No. 84/27.09.2004). It also notes the establishment of the Public Procurement Agency, an organization responsible for assisting the implementation of national policy in the area of public procurement, as well as the introduction of a Public Procurement Register with a view to ensuring openness and transparency in public procurement. The Committee further notes the adoption of the Ordinance on small public procurement contracts 249/2004 which imposes strict rules even for low-value contracts.

While noting the latest amendments made in view of the harmonization with European Union directives on public procurement, the Committee regrets that the new public procurement legislation – like the previous legislation adopted in 1999 – fails to provide for the insertion of labour clauses in public contracts as required under Article 2, paragraph 1, of the Convention. In fact, the only provision concerning the pay conditions of workers engaged in the execution of public contracts is found in section 56(1) of the Public Procurement Act which requires each tender for public works to contain, among other indications and guarantees, a declaration to the effect that the price tendered complies with the minimum labour cost requirements. As for the term “minimum labour cost”, this is defined in section 147(1) of the same Act as the minimum monthly income, differentiated by sector and occupation, and used as a base for the calculation of social security contributions.

The Committee recalls that the mere fact that the labour legislation is applicable to workers engaged in the context of public contracts does not in any way exempt the Government from providing for the inclusion in public contracts of the labour clauses envisaged in the Convention. Such inclusion ensures the protection of workers in cases in which the legislation only establishes minimum conditions of work (e.g. minimum pay rates) which may be exceeded by general or sectoral collective agreements. Moreover, even if collective agreements were applicable to workers engaged in the context of the execution of public contracts, the implementation of the Convention retains its full value in so far as its provisions are designed precisely to ensure the specific protection needed by such workers. For example, the Convention requires the adoption by the competent authorities of measures, such as the advertisement of specifications, to ensure that tenderers have advance knowledge of the terms of the labour clauses (Article 2, paragraph 4). It also requires notices to be posted in conspicuous places at the workplace to inform workers of the conditions of work applicable to them (Article 4(a)). Finally, it provides for sanctions in the event of non-compliance with the terms of labour clauses, such as the withholding of contracts or the withholding of payments due to contractors (Article 5), which may be more directly effective than those available for violations of the general labour legislation.

The Committee hopes that the Government will adopt without delay the necessary measures in order to give full effect to the requirements of the Convention. It recalls, in this connection, that the Government may draw upon the advisory services of the Office should it so wish for the purpose of addressing the issues highlighted above.

Moreover, the Committee notes that the Government has not supplied in recent years any information of a practical nature concerning the application of the Convention. It therefore asks the Government to make every possible effort to collect and transmit, in accordance with Part V of the report form, up to date information on the average number of public contracts granted annually and the approximate number of workers engaged in their execution, inspection results showing the number and nature of contraventions observed, extracts from official documents or studies – such as activity reports of the Public Procurement Agency – addressing the social aspects of public procurement, as well as any other particulars which would enable the Committee to have a clear understanding of the manner in which the Convention is applied in practice.

Finally, the Committee seizes this opportunity to refer to this year’s general survey which contains an overview of public procurement practices and procedures in so far as labour conditions are concerned and makes a global assessment of the impact and present day relevance of Convention No. 94.

[The Government is asked to reply in detail to the present comments in 2008.]