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 Act, 2004, and of the Public Procurement (Goods, Works, Non-Consultant Services and Disposal of Public Assets by Tender) Regulations, 2005. It notes, in particular, that the only provision in these texts which appears to address labour matters with relation to the public procurement process is to be found in section 14(1)(d) of the Regulations which provides that, as a prequalification criterion, suppliers, contractors and service providers must have fulfilled their obligations to pay taxes and social security contributions and they must abide to employment, environmental, health and safety requirements in the United Republic of Tanzania, where required. The Committee refers, in this respect, to paragraphs 117–118 of the General Survey of 2008 on labour clauses in which it pointed out that the Convention does not relate to some general eligibility criteria of individuals or enterprises bidding for public contracts but requires a labour clause to be expressly included in the actual contract that is finally signed by the procuring entity and the selected contractor. Similarly, certification may offer some proof about tenderers’ past performance and law-abiding conduct but carries no binding commitment with regard to prospective operations as labour clauses do. Noting therefore that the new public procurement legislation appears to contain no provision implementing the requirements of the Convention, the Committee requests the Government to specify how it is giving effect to the Convention in law and practice and to transmit copies of any relevant texts which may not have been communicated previously.

In addition, the Committee notes that, under section 7(1)(d) of the Public Procurement Act, the Public Procurement Regulatory Authority is responsible for preparing and issuing authorized versions of standard tendering documents. The Committee therefore requests the Government to indicate whether any standard bidding documents containing labour clauses have so far been issued and are currently in use and, if so, to transmit copies. Moreover, the Committee recalls that in an earlier report the Government had referred to the Conditions of Contract for Works of Civil Engineering Construction prepared by the International Federation of Consulting Engineers (FIDIC) as being systematically applied to all public contracts. In this respect, the Committee wishes to refer to paragraph 268 of the abovementioned General Survey in which it noted that the FIDIC general clause on rates of wages and conditions of labour does not fully meet the international standard set in the Convention since it does not refer to local wages and conditions of labour being established by collective agreement, arbitration award or national laws or regulations, it does not fully capture the idea that it is the most advantageous level of wages and working conditions established locally that is required under the contract, and it does not establish clearly that it applies also to subcontractors. The Committee accordingly requests the Government to provide additional explanations in this regard.

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, copies of official documents such as reports or surveys undertaken by the Public Procurement Regulatory Authority on procurement matters, 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.