Scottish procurement policy handbook

14. Human rights

Suppliers that are awarded public contracts should take a robust approach to human rights in all parts of their business including their supply chain. Guidance on due diligence: human rights sets out how the Scottish Government, Executive Agencies and Non-Departmental Public Bodies should undertake appropriate due diligence on companies, including their human rights record, before entering into an investment relationship with them. Other public bodies are encouraged to undertake an assessment of any company, including any parent or subsidiary, before becoming involved in a business arrangement with them, to establish if they have been associated with human rights abuses anywhere in the world.

Public bodies should consider early in the process whether their procurement raises any concerns regarding human rights so that relevant and proportionate measures can be taken to help reduce the likelihood of human rights issues occurring in their contract.

There are a number of measures in the 2015 Regulations and the 2016 Regulations aimed at ensuring suppliers’ compliance with environmental, social, and employment laws when performing public contracts:

• The Sustainable Procurement Duty requires public bodies to consider how their procurements can be used to improve social, economic and environmental well-being, and reduce inequality and act in a way to secure this. Compliance with the duty can help show its contribution to achieving national outcomes.
• a legal obligation to exclude companies from tendering for public contracts where they have been convicted of any offence under Part 1 of the Human Trafficking and Exploitation (Scotland) Act 2015 or under any provision referred to in the Schedule to that Act.
• the ability to exclude companies from tendering for public contracts where they have breached any obligations in the fields of environmental, social or employment law (this would include the Human Trafficking and Exploitation (Scotland) Act 2015 and the Modern Slavery Act 2015).
• the ability to require suppliers to replace sub-contractors where they have breached any obligations in the fields of environmental, social or employment law.
• a legal obligation to include relevant clauses in contracts to ensure contractors comply with environmental, social and employment law obligations. Contract conditions that allow for contract termination if the contractor or a sub-contractor fails to comply with environmental, social and employment law were included in SPPN 9/2016. Public bodies may consider including similar conditions in their terms and conditions.
• the ability to reject bids that do not comply with environmental, social or employment law, established by national law or collective agreements.
• a legal obligation to reject bids that have been found to be abnormally low because they do not comply with applicable obligations in environmental, social or employment law.

Public bodies are encouraged to consider human rights related requirements on a case-by-case basis, in a way which is relevant and proportionate to each contract. This approach enables Procurement Officers to do what will have the greatest impact in a particular contract. This includes market analysis which assesses value and risk and accounts for the nature of goods, services or works being bought. The Sustainable Procurement Tools and guidance have been designed to help public bodies comply with policy and legislation, including how to take an ethical approach to procurement activity. They take account of human rights considerations including the UN Guiding Principles, human trafficking and exploitation, and conflict minerals.