European Commission Revises Guidance on Green Public Procurement

Tuesday November 29th, 2011

By Daradjeet Jagpal, Solicitor, Harper Macleod LLP

The European Commission has revised its guidance on green public procurement (GPP), which outlines the role and importance of green public procurement, and how environmental issues can be taken into account at each stage in the public procurement process.

Green public procurement is the process by which contracting authorities seek to procure goods, works and services with a reduced environmental impact when compared to goods, works and services which would otherwise be procured. GPP can assist in achieving sustainability goals and can also be a key driver for innovation. The Commission’s updated guidance provides examples of when and how GPP is currently being used throughout the EU and how a GPP policy can be implemented effectively in the context of each stage in the procurement process:

Choosing the procedure

The guidance emphasises the need for contracting authorities to acquire a degree of market knowledge in terms of the possibility of, the costs involved in and the practical implications of selecting green alternatives. This may consist of engaging in dialogue with possible suppliers, provided that such engagement is carried out in a fair and transparent manner.

Determining contract requirements

The guidance notes that it is imperative that the contract is defined in a manner which does not affect access by tenderers based in other EU Member States. The main environmental impacts of the contract must be identified and ‘green titles’ should be used to highlight the fact that the environmental performance of the goods, service or works will be an essential part of the contract. The technical specifications of the contract may make reference to relevant eco labels and the environmental performance levels of a material, product, supply or service. The eco label must be appropriate and define the characteristics of the product or service and the requirements for the eco label must be based on scientific information and be accessible to all. Tenderers should not be required to register under a specified eco label.

Selecting suppliers

The guidance points out that non-compliance with environmental legislation may amount to professional misconduct, and may result in a tenderer being excluded from the procurement process. Environmental technical capacity can also be a valid selection criterion. In particular, contracting authorities may find it useful to ask tenderers for their previous experience in contracts with similar environmental requirements. The guidance considers the extent to which contracting authorities may ask tenderers about the environmental management measures which the tenderer will apply during contract performance.

Tender evaluation

If a contracting authority chooses to include environmental issues within the tender evaluation stage, consideration must be given to whether they should be included within the specification or as specific award criteria. The guidance notes that contracting authorities may find it appropriate to apply environmental award criteria where they are not certain of the cost and/or market availability of products, services or works.

Contract performance

The guidance stresses that contract performance clauses which relate to environmental and social considerations must be set out clearly in the tender documents to ensure that tenderers are aware of their prospective contractual obligations, and are able to reflect this in their respective prices. Such clauses must not result in discrimination between tenderers.

The Commission’s guidance on GPP is very timely since environmental and sustainability issues are of fundamental importance to contracting authorities, who are keen to save costs while meeting their environmental targets and objectives. The guidance may be accessed at: http://ec.europa.eu/environment/gpp/pdf/handbook.pdf

Daradjeet Jagpal is a solicitor at Harper Macleod LLP and can be contacted on [email protected]

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