August 24th, 2020

To:
Stacey Foreman
Sustainable Procurement Program Manager
City of Portland
Via email: [email protected]

Dear Stacey,

We at the American Friends Service Committee have been following the ground-breaking work
done by your office with the hope of supporting it, learning from it, and eventually helping
other cities around the country replicate it. We see a great opportunity right now to promote a
new approach to public procurement, one that prioritizes companies that support our
communities and our collective, shared wellbeing.

The American Friends Service Committee is a 103-year old Quaker organization that promotes
lasting peace with justice, as a practical expression of faith in action. We work with
communities in over 45 locations across the U.S. and in 17 countries. My program is located in
Oakland, CA, and it specializes in corporate research and CSR strategies for investors and
advocacy groups with an emphasis on corporate complicity in human rights violations
stemming from actions of state violence, such as: mass incarceration, mass surveillance, war
crimes and violations of international humanitarian law, immigrant criminalization and
detention, and the militarized policing of civilian communities. As part of this effort, we worked
on responsible procurement and investment policies with faith organizations and universities,
cities and foundations.

Last year we were invited, along with other advocacy groups with presence in the Portland
community, to participate in a series of open meetings and consultations about the proposed
new Vendor Responsibility Questionnaire and Contractor Code of Conduct. As part of the
feedback session on December 12th, 2019, I shared a concern about the “labor and human
right” section in both the Code of Conduct and Questionnaire, which focused solely on labor
rights. In response, I was asked to offer the City suggested additions to both documents, to
make sure they go beyond labor rights to include the wider scope of respect for all human
rights.

Human rights include a broad range of internationally accepted rights, including civil, cultural,
economic, political, environmental, and social rights. They stem from the Universal Declaration

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of Human Rights and rely on a series of international treaties that ground human rights law.
This wide scope makes it harder to create a list of specific Vendor Questionnaire questions
which explicitly mention each and every one of these rights. Fortunately, we can use language
already created by the U.N., the OECD, and the ISO, to codify corporate respect for human
rights and provide guidance to corporations and governments in implementing this
commitment.

I offer below some additions to the Contractor Code of Conduct and to the Vendor
Responsibility Questionnaire. In both cases, I have worked with an older draft of these
documents, the one shared with us last year, and I apologize if these have changed since.
Before going into specific suggested language for these documents, here are some general
thoughts:

1. In both the drafts I saw, the section about human rights does not address universal human
rights at all, beyond a few specific labor rights concerns. This omission is harmful, as well as
misleading. I believe that the proposed additions to both sections about the company’s
general commitments to human rights and human rights due diligence are absolutely
necessary, as they set the expectation for many of the following questions. I would propose
reorganizing these documents to separate out the general human rights section, as human
rights may include many of the other issues, and then list the specific concerns the City
would choose to highlight, like labor rights, the environment, good corporate citizenship,
etc.

2. Another issue with the draft Questionnaire is that it might be too cumbersome already,
both for small vendors without much administrative staff and for the City staff itself that
needs to review all that data. It might be that all you need is a clear Code of Conduct, and a
binding commitment by vendors to uphold that Code of Conduct, to report all relevant
issues, and to follow a rigorous due diligence process. You can provide guidelines for such a
process and require a periodic re-affirmation of these commitments from all vendors. This
can work as long as there is an effective public dispute mechanism in place. Instead of
committing to research in advance all possible issues with all vendors, the City would only
require a very basic preliminary check of policy papers to approve vendors. If any
subsequent concerns arise about any of the approved vendors, an effective public appeals
forum, with community members and relevant experts, would review the accuracy of that
company’s self-disclosure against any revelations of serious corporate malfeasance.

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3. Finally, I suggest below two human rights concerns to be added explicitly and presented as
priorities for the City, both to the Code of Conduct and to the Questionnaire:
(a) Because of the great emphasis on labor rights in the draft I saw, I suggest adding prison
labor to the sections about coerced labor and child labor. Prison labor is similarly unfree
and unprotected, but often not included in these categories.
(b) Another crucial issue often not considered a human rights concern (which it obviously
is) is corporate complicity in the Prison and Military Industrial Complex, a rising concern
for racial equity and immigrant justice. The questions suggested below do not require
companies to step away from these industries entirely, but to include them in their
human rights due diligence assessment and measure their complicity in any harm done.

I realize that a lot might have changed in this project since the consultation sessions in the end
of 2019. I hope that you might still find some of my suggestions below helpful, and in any case, I
offer my assistance and support to you in this promising project. I would love to meet and
further discuss any of this with you.

Sincerely,
Dalit

Dalit Baum, Ph.D.

1730 Franklin Street, Ste. 201

CC:
ACLU of Oregon; AFSC Portland Project Voice; Americans United for Palestinian Human Rights;
Amnesty International Portland; APANO; BerniePDX; CAUSA Oregon; CodePink Portland;
Freedom to Thrive; Interfaith Movement for Immigrant Justice; International Committee for
Human Rights in the Philippines; Jewish Voice for Peace – Portland; Occupation Free Portland;
Oregon Justice Resource Center; Oregon Progressive Party; Portland African American
Leadership Forum; Portland Democratic Socialists of America; Portland Jobs with Justice;
Portland Metro People's Coalition; Unite Oregon

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 Addendum 1: Suggested Changes to the City of Portland Contractor Code of Conduct

1. Separate the section about Labor and Human Rights to Human Rights followed by
Labor Rights and other human rights issues.

2. Open the Human Rights section with the commitment echoing the corresponding
section from the U.N. Supplier Code of Conduct (section 10 there):
“[The UN] expects its suppliers to support and respect the protection of internationally
proclaimed human rights and to ensure that they are not complicit in human rights
abuses”.

The two parts of this sentence precisely quote the two corresponding principles
(principle #1 and #2) in the U.N. Global Compact. By using the same general,
internationally accepted language, you offer contractors the wealth of available
resources for different industries and situations, that ground this expectation. First and
foremost among these resources is the U.N. Guiding Principles on Business and Human
Rights, which offers widely accepted and quoted guidelines for the corporate
responsibility to respect human rights. It prescribes a human rights due diligence
process to identify, prevent, mitigate and account for how companies address their
adverse human rights impacts. This due diligence process should be mentioned
explicitly, as the existing DUE DILIGENCE section is too vague.

Here is the suggested addition, using the Code of Conduct format:

HUMAN RIGHTS: Contractors will support and respect the protection of internationally
proclaimed human rights and ensure that they are not complicit in human rights abuses
using a human rights due diligence process (U.N. Guiding Principles on Business and
Human Rights).

3. Add an explicit human rights concern which is often neglected in such documents, yet
highly relevant to our community concerns at this time:

PEACE, RACIAL, AND SOCIAL JUSTICE: Contractors shall not provide any specially
designed, or supportive, products or services to the military industries, to the industries
of mass incarceration and mass surveillance, or to the militarization of borders and law
enforcement agencies.

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 4. In the section about Labor Rights, add to the lines about coerced labor and child labor a
similar, explicit expectation for contractors to avoid the use of prison labor. Even when
seen as voluntary, prison labor is not properly compensated, the conditions and setting
are coerced, workers have no alternatives and no recourse to collective bargaining or to
a complaint mechanism.

For all three, add an expectation for contractors to regularly monitors their supply chain
for the use of these different types of unfree labor.

Addendum 2: Recommended Additions to the City Vendor Responsibility Questionnaire

A. Questions about the company’s respect for human rights:

• Does the submitting vendor have policies, statements, and governance structures
dedicated to the support and respect for human rights?
a. [ ]Yes [ ]No
b. If checked “Yes,” attach copies (or provide links to online content) of policies/
governance documents/ statements as applicable.

● Does the submitting vendor have established human rights due diligence processes and
procedures, to ensure that it is not complicit in human rights abuses, and to respond to
complaints of involvement in human rights abuses?
a. [ ]Yes [ ]No
b. If checked “Yes,” attach copies (or provide links to online content) of policies/
procedures/ reporting as applicable.

Explanation:
According to the U.N. Guiding Principles on Business and Human Rights (UNGP), and the OECD
Due Diligence Guidance for Responsible Business Conduct, the responsibility to respect human
rights requires that business enterprises (Section 13 of the UNGP):

(a) Avoid causing or contributing to adverse human rights impacts through their own
activities, and address such impacts when they occur;
(b) Seek to prevent or mitigate adverse human rights impacts that are directly linked to
their operations, products or services by their business relationships, even if they have
not contributed to those impacts.

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In order to meet their responsibility to respect human rights, business enterprises should have
in place policies and processes appropriate to their size and circumstances, including (Section
15 of the UNGP):

(a) A policy commitment to meet their responsibility to respect human rights;

For the sake of this Questionnaire, asking for vendors to have established an explicit human
right policy and due diligence is a minimal requirement to showing their respect for human
rights. Because of the wide scope of human rights concerns, it is impossible to dedicate specific
Questionnaire questions to each and every one of them. These broader questions are here to
ensure that the vendor is aware of the City’s concern for all human rights and committed to
respecting all human rights, as written in the Code of Conduct.

B. Questions about Prison labor:

● In the last five (5) years, has the submitting vendor been using prison labor?
a. [ ]Yes [ ]No
b. Provide a detailed response if checked “Yes”, describing the specific incarceration
facilities and programs involved.

● Describe the submitting vendor’s policies and due diligence processes for preventing any
involvement in prison labor. Also describe the due diligence practices the submitting vendor
undertakes to monitor prison labor within its supply chain, including subcontractors. Attach
copies (or provide links to online content) of policies/procedures/reporting as applicable.

Explanation:
Most prison labor has been excluded from legal definitions of forced labor, and might not be
disclosed using the questions about forced labor. Even when described as “voluntary,” it is
practiced under violently coercive conditions, without the protections of labor law or collective
bargaining, without proper pay or work conditions protections, or relevant grievance
mechanisms.

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C. Questions about involvement in the prison industrial complex:

● In the last five (5) years, has the submitting vendor participated in any contracts with prison
or criminal justice companies or agencies?
a. [ ]Yes [ ]No
b. If checked “Yes,” provide a detailed response, listing agencies and services or products
rendered.

● Describe the submitting vendor’s policies and due diligence processes for preventing any
involvement in the industry of mass incarceration. Attach copies (or provide links to online
content) of policies/procedures/reporting as applicable.

Explanation:
The industry of mass incarceration and criminal punishment encompasses millions of people in
the U.S., incarcerated in facilities or tracked and monitored through bail, parole, and
community corrections. Communities of color and immigrants are disproportionally targeted,
surveilled, criminalized, and caged, leading to these communities’ impoverishment and
devastation. All aspects of this system are privatized, well beyond the privately managed
facilities themselves. Asking vendors to self-disclose any business relationships with prison
companies and agencies would allow the city to evaluate the extent of the harm this business
contributed to, and its stakes in the prison industry.

D. Questions about business relationships with the military/ security industrial complex:

● In the last five (5) years, has the submitting vendor participated in any contracts with the
Department of Defense or with similar departments of foreign countries?
a. [ ]Yes [ ]No
b. If checked “Yes,” provide a detailed response, listing agencies and services or products
rendered.

● In the last five (5) years, has the submitting vendor participated in any contracts with law
enforcement agencies which contributed to their militarization, weaponry or surveillance
capacities?
a. [ ]Yes [ ]No
b. If checked “Yes,” provide a detailed response, listing services or products rendered.

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● Describe the submitting vendor’s policies and due diligence processes for preventing any
involvement in the production and supply of weapons and tools for mass surveillance.
Attach copies (or provide links to online content) of policies/procedures/reporting as
applicable.

Explanation:
The military industrial complex has expanded to include new technologies of mass surveillance.
Tools of military surveillance and militarized policing are used against civilian populations
around the world and in our own U.S. cities. This is a vast business, encompassing entire
industries. The purpose of this section is to encourage vendors to use their commitment to
human rights due diligence when examining their own business relationships with the military
and with law enforcement agencies. It would also allow the City to see the company’s human
rights due diligence process in action and determine acceptable thresholds for such business
activities.

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