Observation (CEACR) - adopted 2017, published 107th ILC session (2018)

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

The Committee notes the observations made by the Confederation of Independent Trade Unions in Bulgaria (KNSB/CITUB) received on 1 September 2016. The Committee requests the Government to provide its comments in this respect.

Article 2 of the Convention. Insertion of labour clauses in public contracts. In its previous comments, the Committee asked the Government to take without further delay all necessary action in order to give full effect to the Convention and to keep the Office informed of any progress made in this regard. In this context, the Committee takes note with interest of the adoption of the new Public Procurement Act (PPA), which entered into force on 15 April 2016. In its observations, the CITUB indicates that the PPA seeks to establish a new regulatory framework aligned with the EU Directive 2014/24/EC on public procurement. The CITUB adds that it participated actively in the discussions on the draft PPA and expresses its satisfaction with the text adopted, which it considers to be in conformity with the provisions of the Convention. The Government indicates that the PPA aims to increase the efficiency of public spending as well as to use public procurement to support common goals of a public nature, including implementation of labour law measures. The Committee notes the Government’s statement that section 115 of the PPA requires contractors and their subcontractors to observe all applicable rules and requirements, related to environment protection, social and labour law, applicable collective agreements and provisions of international environmental, social and labour law listed in Annex 10 and section 107(2) of the PPA. Moreover, the Government indicates that, according to section 47(1)–(3) of the PPA, the contracting authorities are entitled to include specific conditions for implementing the contract relating to employment protection and working conditions in force in the country. The Committee notes that contracting authorities are not merely entitled to include labour clauses in public contracts, but that this is the central obligation under Article 2 of the Convention. In its General Survey concerning Labour Clauses in Public Contracts, 2008, paragraph 40, the Committee stated that “the essential purpose of Convention No. 94 and Recommendation No. 84 is to ensure that workers employed by a contractor and paid indirectly out of public funds enjoy wages and conditions of labour normally established for the type of work concerned, whether they are established by collective agreement or otherwise, in the locality where the work is done. The Convention requires that this be done through the insertion of appropriate labour clauses in public contracts.” The Committee takes notes of the Government’s indications regarding section 32 of the PPA, which stipulates that contracting authorities shall provide unlimited, complete, free and direct access through electronic media to the documentation for public procurements. With regard to the obligation of ensuring effective enforcement through a system of inspection and adequate sanctions, the Government indicates that, according to section 175(5) of the PPA, the contracting authority is entitled to reject subcontractors if they do not meet the selection criteria specified in the notice and documentation, including the requirements relating to labour law. In its observations, the CITUB notes that the PPA guarantees that candidates who have infringed the provisions of the labour law relating to wages in implementing a public contract will be excluded from public procurement procedures. It expresses its concern that the PPA does not apply the same requirements to subcontractors as to contractors, and that therefore workers employed by subcontractors may not have sufficient protection of their salary and contributions. The Committee requests the Government to indicate the manner in which it is ensured that labour clauses of the type specified in Article 2 of the Convention are contained in all public contracts falling within the scope of Article 1 of the Convention and that they ensure to the workers of contractors or subcontractors payment of wages and other working conditions not less favourable than those established for work of the same character in the same area by collective agreement, arbitration award or national laws or regulations. The Committee requests the Government to transmit copies of standard bidding documents currently in use. It also requests the Government to indicate the measures taken to ensure the posting of notices in conspicuous places at the workplace with a view to informing the workers of their conditions of work.

Application of the Convention in practice. Labour inspection. The Committee requests the Government to provide information on the manner in which the Convention is applied, including statistics on the number of inspections, the number and type of infractions detected and the sanctions applied.