Getting started with social return

The implementation of social return policy should be consistent with local law and must, therefore, comply with the general principles of public procurement law: non-discrimination, objectivity, transparency and proportionality. For each contract, it is important to decide whether the implementation of social return is proportionate to the value of the contract, the type of work/service involved, and so on.

There are various ways in which social return in the Netherlands can be incorporated into public procurement.

Minimum requirement - schedule of requirements

Social return can be included as a minimum requirement in a public procurement - for example, as a percentage of the contract's wage bill, a percentage of the contract price, or a calculation of the number of hours worked. In capital-intensive contracts, it is advisable to use a percentage of the contract's wage bill. In contracts involving a large labour component, a fixed percentage of the contract price is recommended. If the tender fails to meet the minimum requirement, it will be excluded from further assessment.

Award criteria (and sub-award criteria)

Social return can be used as a quality aspects in the Most Economically Advantageous Tender (MEAT) approach.For example, you can award more points to tenders that involve a higher level of social return in the implementation of the contract. The advantage of this approach is that the bidder scores points based on an objectively measurable method. However, frameworks must be imposed when using this methodology. The fixed upper limit should be realistically feasible, to prevent strategic tendering. It must also be proportionate, to enable its use as a sub-award criterion. In the implementation phase, checks must be made to verify that the promised percentage is being achieved in the approved manner. Accordingly, a contract condition pertaining to social return is usually included.

An action plan can also be used as a sub-award criterion. To ensure the submission of effective action plans, you should ensure that bidders are effectively targeted by the invitation to tender. For example, you could ask how the bidder plans to ensure that the target percentage for social return is achieved, or you could enquire about supervision in the workplace. The objective method for assessing the action plan should be made clear to all bidders.

Special terms and condition of performance

A contracting authority may attach special conditions to the implementation of a public contract. These conditions must be stated in the contract notice or the tender documents. They should have a sufficiently close link with the subject-matter of the contract and must not be directly or indirectly discriminatory. Special terms and conditions of performance may be linked to factors such as social considerations. When implementing social return as part of the special terms and conditions of performance, you should include a specific percentage of social return in the draft agreement, as a contract requirement. Bidders undertake to spend a given percentage of a contract's wage bill, for example, on employing people who are disadvantaged within the labour market. The contracting authority monitors compliance with this during periodic contract reviews. It is the contractor's responsibility to select the actual method used in this process.

Other options

You can also reserve public contracts for sheltered employment facilities. This does not mean privately awarding a contract to one of those companies. The contract must be open to competition. In its invitation to tender, the contracting authority must clearly state that only sheltered employment facilities may respond.

You can also reserve small lots from a public procurement, via the lot regulation, to be placed with selected sheltered employment companies by means of a private procedure. However, as per the 2012 Public Procurement Act, you will have to defend the decision to place the contract with these companies rather than others. 

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