Briefings from ClientEarth on sustainable public procurement

(Brussels, 15 May 2012)

1) Simplifying the procurement Directive to achieve sustainability – technical specifications and award criteria

The revision of the public procurement Directive was intended to open up the space for the procurement of environmentally sustainable, socially responsible and innovative goods. One very important way to underscore in the revised Directive that a contracting authority’s discretion extends to incorporating social considerations is to clarify that technical specifications, award criteria and contract performance conditions should be distinguished in accordance with their respective roles within the procurement process, not on the basis of their content. This will entail removing, where appropriate, the approach taken in the Commission’s proposal which seeks to list types of characteristics/criteria that can be used at the respective stages. In the attached briefing, ClientEarth explains how the objectives of legal certainty, simplification, enabling more sustainable public procurement and respecting subsidiarity can all be advanced if the revised Directive takes such an approach. An approach that lists characteristics that can or cannot be addressed through technical specifications or award criteria would be likely to perpetuate the unnecessary complication and legal uncertainty that is holding back sustainable public procurement under the current Directive. This briefing includes reference to the very recent CJEU decision in the North Holland case.

2) Procuring best value for money - why eliminating the ‘lowest price’ approach to awarding public contracts would serve both sustainability objectives and efficient public spending

The Commission’s proposal is not responsive to calls by the European Parliament and others to move away from allowing authorities to simply choose the lowest priced tender. In the attached briefing ClientEarth explains how maintaining a ‘price only’ option in the revised Directive would fail to adequately reflect the requirement under the Treaty on the Functioning of the European Union to integrate environmental protection into the definition and implementation of the Union’s policies and activities, with a view to promoting sustainable development. The Treaty’s requirement that the Union takes into account adequate social protection and a high level of protection of human health when defining and implementing its policies and activities and the aspirations to improve policy coherence set out in the EU’s Sustainable Development Strategy also appear to have been forgotten. The general elimination of the lowest price option for the award of procurement contracts would be a significant step towards enabling public procurement officials to consistently utilise public procurement to achieve strategic policy goals, such as the promotion of sustainable development. In addition, we question whether the term ‘MEAT’ adequately communicates that a broad range of strategic factors may be taken into consideration when choosing between the tenders that meet the minimum requirements.

For your information, please see below two new ClientEarth briefings:

- Procuring best value for money

- Distinguishing technical specifications and award criteria on the basis of role, not content - update