Observation (CEACR) - adopted 2012, published 102nd ILC session (2013)

Labour Clauses (Public Contracts) Convention, 1949 (No. 94) - Bermuda

Article 2 of the Convention. Insertion of labour clauses into public contracts. In its previous comment, the Committee asked the Government to clarify whether the administrative instructions which had been adopted on 29 December 1962 and which gave effect to the requirements of the Convention, still remained in force or whether they had been amended or replaced by new texts.

In its latest report, the Government indicates that it is unable to answer definitively whether such instructions are still in force. It also indicates that the Good Governance Act 2011, which is operative as from 21 October 2011, established the Office of the Project Management and Procurement within the Ministry of Finance to be responsible for managing the selection and award of government contracts in accordance with principles of transparency and best practice. The Government further states that the Contracts and Compliance Manager within the Office is currently preparing contract templates for public contracts which will include social, economic and environmental criteria in line with international practice. Moreover, the Government states that the current form of contracts used for construction projects has been in use for some time and has been drafted in compliance with internationally recognized standards, such as the International Federation of Consulting Engineers (FIDIC).

While noting these explanations, the Committee wishes to recall the main objective of the Convention which is to promote good governance and socially responsible public procurement by requiring contractors to apply locally established prevailing pay and other working conditions as determined by law or collective agreement. The Convention proposes a common level playing field – in terms of labour standards – for all economic actors so as to ensure fair competition. By requiring all bidders to respect, as a minimum, certain locally established standards, wages, working time and working conditions may not be used as elements of competition and consequently no downward pressure on wages and working conditions may be exerted. Noting that a code of practice for Project Management and Procurement to be followed by all public officers concerned with public procurement operations is currently under preparation under the Good Governance Act 2011, the Committee hopes that the Government will seize this opportunity in order to formulate standard bidding documents incorporating labour clauses for all public contracts (whether for construction works, goods or services) fully aligned with the requirements of Article 2 of the Convention. The Committee requests the Government to keep the Office informed of any progress made in this regard and to transmit a copy of the code of practice once it is adopted.