Demande directe (CEACR) - adoptée 2008, publiée 98ème session CIT (2009)

Article 2(1) of the Convention. Insertion of labour clauses. The Committee notes the adoption of the Public Procurement Code, Decree No. 2002–08 of 12 February 2002, which replaces the Public Procurement Regulations, Decree No. 93–011 of 10 January 1993. The Committee understands that the Government undertook in 2007 the revision of the Public Procurement Code and that a draft text has already been prepared. In this connection, the Committee notes that the only provision on labour conditions applicable in the execution of a public contract is to be found in section 93 which requires all enterprises, contractors and service providers participating in public tendering to commit themselves at the pre-selection stage to comply with legal and regulatory provisions in force, or relevant provisions of collective agreements, especially in respect of wages, working conditions, or health and safety of the workers concerned. The Committee considers that the draft section 93 on social obligations is not entirely consistent with the Convention since it fails to provide for wages and other conditions of work at least as favourable as the most advantageous conditions established for work of the same character in the same region.

In addition, the Committee notes that draft section 73 provides that contracting authorities may reject abnormally low bids, taking into account the provisions on working conditions in force where the work is carried out. However, as the Committee has pointed out on several occasions, such clauses do not afford the level of protection required by the Convention and therefore are not sufficient to give effect to its requirements.

Furthermore, the Committee notes that in reply to comments made by the General Confederation of Workers of Mauritania (CGTM), the Government has contented itself with stating that no enterprise may participate in competitive bidding unless it is in full conformity with tax, social security and labour laws and regulations in force. However, any such “filtering” or certification mechanism at the pre-selection stage is not strictly relevant to the main obligation of the Convention since it bears no relationship – and does not guarantee – the labour standards which should be observed in the execution of the public contract that is the subject of competitive bidding.

In light of the above, the Committee is not clear whether Order No. 35 of 3 June 1992 on the insertion of labour clauses in administrative contracts of all types concluded in the name of the State and on behalf of the State, local authorities and public establishments, which used to implement the requirements of the Convention, is still in force. It therefore requests the Government to provide additional explanations in this regard. It would also appreciate receiving a copy of the new Public Procurement Code as soon as it is adopted.

Part V of the report form. The Committee would be grateful if the Government would communicate, together with its next report, up to date information on the application of the Convention in practice, including for instance the average number of public contracts granted annually and the approximate number of workers engaged in their execution, labour inspection results concerning contract performance, standard bidding documents containing labour clauses, copies of official documents such as reports of public procurement controlling authorities, etc.

For all useful purposes, the Committee attaches herewith a copy of a Practical Guide, prepared by the Office principally on the basis of the General Survey of 2008 on Convention No. 94, to help better understand the requirements of the Convention and ultimately improve its application in law.