Legal framework for Green Public Procurement (GPP)

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European Commission
GPP Training Toolkit
Module 2
Legal framework for Green Public Procurement (GPP)
2
Legal framework

• New Procurement Directives
• Directive 2004/17/EC (utilities)
• Directive 2004/18/EC (goods, works, services)
• Member States were required to transpose these
  into national legislation by 31 January 2006

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Legal framework

• Treaty of the European Union
• The following principles must always be respected
  for any public procurement action

• Free movement of goods
• Freedom to provide services
• Non-discrimination
• Equal treatment
• Transparency
• Proportionality
• Mutual recognition
• Best value for money

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Introducing green criteria in tender documents

• Subject Matter

Requirements on products/services/works
purchased

• Technical Specifications

• Award Criteria

• Contract Performance Clauses

• Selection Criteria

Requirements on bidders
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Subject Matter
The procurement laws define HOW to buy but not
WHAT to buy. There is freedom to define what
you want to buy according to your needs as long
as you respect the Treaty principles and ensure
adherence to public procurement rules when
specifying what you want to buy.
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Subject Matter
The most direct, clear and transparent way to
practice GPP is by specifying it at the beginning
of the process, in the definition of the Subject
Matter.
Be careful! Always ensure compliance with key
principles, even in the Subject Matter equal
treatment and non-discrimination.
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Subject Matter Examples
Cleaning services with low environmental
impact The design and construction of an
energy-efficient building Recycled paper for
printing, copying and writing purposes
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Subject Matter Examples
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Technical Specifications
Clear definitions All Technical Specifications
must be sufficiently precise to allow potential
suppliers to understand exactly what is
required. It is not possible to simply demand
that All offered products must have a low
environmental impact - it must be clearly
defined what low environmental impact means,
for instance by using the standards or ecolabel
criteria already mentioned.
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Technical Specifications
Technical specifications can be defined in
relation to
Technical standards The Technical Specifications
of the product or service can be defined by
referring to existing international, European or
national technical standards such as ISO, EN,
DIN. Such reference shall be accompanied by the
words 'or equivalent, so that a supplier whose
product meets an alternative but equivalent
standard is not discriminated against. It is up
to the contracting authority to decide, from a
technical perspective, what constitutes an
equivalent standard.
(Copying paper) The whiteness level must be lt90
according to ISO 24701999 or equivalent.
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Technical Specifications
Performance or functional requirements Technical
Specifications can also be defined in terms of
the environmental performance of the product or
service (such as ecolabel criteria), or the
function you require the final product to fulfil.
Specifying the function rather than defining the
exact technical characteristics of what you
require allows greater flexibility in how
potential suppliers can respond, giving an option
for innovative responses.
(New building) Indoor air conditions in a
building inside temperature between 18-22oC
during winter and 26-28oC during summer and a
relative humidity of 50.
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Technical Specifications
Ecolabel criteria You can request that the
product meets the underlying criteria of a
recognised ecolabel and recognise the ecolabel as
non-exclusive proof of compliance you cannot
require that the product carries the ecolabel
itself - other forms of proof must be accepted.

• Ecolabel criteria can only be used if
• Criteria are drawn up and adopted on the basis of
  scientific information
• The relevant ecolabelling scheme is transparent
  and criteria are based on full stakeholder
  consultation
• The scheme is accessible and available to all
  interested parties

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Technical Specifications
Ecolabel criteria (cont.) The most common
European ecolabels (European Ecolabel, Nordic
Swan, Blauer Engel, Milieukeur, Umweltzeichen,
AENOR etc.) meet these standards. Note Only
those ecolabel criteria which are considered
relevant for defining the product may be used
i.e. only criteria which refer to characteristics
of the product or service itself or production
processes, not those relating to the general
management of the company.
(PC)The energy consumption must comply with
the standards set in the Energy Star label.
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Technical Specifications
Production and process related criteria
You can also include requirements related to the
way in which the product has been produced, as
long as they are relevant for characterising the
product based on a life cycle approach this
implies that the environmental criteria can
concern aspects of the production process such
as, for instance, emissions to air and water
during the production process, which do not
necessarily impact on the physical
characteristics of the end product. As such you
can indicate that during the production of paper,
harmful emissions to air and water may not exceed
certain limits, or that electricity is produced
from renewable sources because these criteria
characterise the end product from a life cycle
perspective.
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Technical Specifications
Production and process related criteria
(cont.) However you cant include requirements
related to the overall environmental management
of the supplier (for instance requiring that a
supplier of cars uses recycled office paper or
offers organic food in its canteen), because
these requirements are not related to the
products which are the subject of the contract.
Food is organically produced (without the use of
chemical pesticides and fertilisers) in
compliance with EEC Regulation 2092/91 of 24 June
1991 and 1804/99/EC.
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Technical Specifications - Verification
Verification The contracting authority can
recognise an ecolabel as proof of compliance with
certain environmental requirements specified in
the tender documents. However, it will also have
to accept other appropriate means of proof,
such as a technical dossier from the manufacturer
or a test report from a recognised body. The
contracting authority will have to verify itself
on a case by case basis, from a technical/legal
perspective, whether the submitted proof can be
considered appropriate. An ecolabel is a
simple way to prove compliance, but other means
of proof must also be accepted.
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Technical Specifications Examples
Certified Blue Angel paper
Containing at least 80 of post-consumer waste
content
Totally chlorine free (TCF) paper
Durabilitygt100 years, according to ISO 9706 or
DIN 6738
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Technical Specifications Examples
Low fertiliser use during food cultivation (for
organic food)
Meets the ecological criteria as detailed in the
Blue Angel
Compatibility with machinery meeting DIN 19309,
AFNOR Q11-013 or equivalent
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Selection Criteria - Exclusion
Exclusion You can exclude certain suppliers from
bidding for a tender for a number of reasons,
such as if they have been convicted of breaking
the law (including national environmental laws).
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Selection Criteria - Technical
Technical and/or professional capacity You need
to ensure that suppliers have the ability to
perform the contract by requiring them to submit
proof of their technical and/or professional
capacity (education, experience, equipment,
etc.). In certain cases this can also mean
requiring proof that they are able to manage the
contract in an environmentally sound manner.
This only applies for certain services and
works which are environmentally sensitive in
nature - e.g. waste management contracts,
construction activities, transport services,
cleaning services.
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Selection Criteria - Technical
Technical and/or professional capacity
(cont.) The contractor can be asked to provide
evidence of appropriate experience and/or
environmental management practices. EMAS or
other certified environmental management systems
can be used to demonstrate this (as long as it
relates to that particular service), although
other forms of proof must also be accepted.
(Construction work) The bidder must demonstrate
its capacity to carry out the construction work
in an environmentally sound manner. A certified
environmental management system (such as EMAS)
will be deemed to demonstrate compliance, as will
other evidence of equivalent environmental
management measures, such as details of such
measures taken in previous contracts.
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Selection Criteria Examples
Design and construction of a bio-climatic
building Technical capacity Request a list of
previous buildings which have been constructed
adhering to bio-climatic principles
Construction of a bridge in a protected
area Technical capacity The possession of an
EMAS for construction sites
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Award Criteria

• Contracts can be awarded based on either
• Lowest price OR
• Most economically advantageous tender
• Other award criteria can be taken into account
  besides price. E.g. delivery date, technical
  merit or environmental characteristics, as long
  as they are
• clearly mentioned in the tender
• related to the subject matter
• objectively quantifiable - verifiable
• weighted (i.e. explaining how much importance is
  given to each award criterion)

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Award Criteria - Whole life costing

• The comparison of the different economic offers
  need not be based solely on the purchase price.
• A more accurate approach is to consider the
  whole life costs related to the ownership of
  the product, taking into account

• Purchase price
• Usage and maintenance costs (including energy and
  water consumption and other consumables such as
  ink or paper)
• Disposal or resale

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Award Criteria - Whole life costing

• From an environmental perspective considering
  usage and disposal costs is a further means of
  taking into account important environmental
  considerations such as energy and water use, and
  the generation of waste.

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Award Criteria - benefits

• Using environmental criteria in the award phase
  has two important benefits
• Rather than just setting a standard which must be
  met, it encourages offers which go beyond this,
  and therefore pushes the market to innovate and
  improve
• If you are unsure of the price or market
  availability of green products or services, this
  is a risk-free way of indicating that you would
  prefer a higher environmental standard but not at
  any cost

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Award Criteria - formulations

• Different formulations are possible for award
  criteria
• Compliance with a certain standard giving X
  points in the award phasee.g. Bids offering
  products meeting the latest ENERGY STAR standards
  for energy performance will receive 10 points
  (out of 100).
• Points awarded proportionally on the basis of
  performance beyond the minimum requirements in
  the technical specificationse.g Bids offering
  products with an energy demand even lower than
  that defined in the technical specifications will
  receive up to 10 points (out of 100). Offers
  meeting only the requirements in the technical
  specifications will receive 0 points. The best
  offer will receive 20 points. Other offers will
  receive a proportional number of points.

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Award Criteria - formulations

• Points awarded proportionally on the basis of
  performance, without any minimum requirements
  outlined in the technical specifications e.g
  Bids will receive up to 10 points (out of 100)
  depending on their energy demand.The best offer
  will receive 20 points. The worst offer will
  receive 0 points. Other offers will receive a
  proportional number of points.

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Award Criteria Examples

• Computer leasing
• for the economic offer up to 80 points
• for energy demand even lower than that defined in
  the technical specifications up to 20 points.

• Street cleaning service
• for the economic offer up to 80 points
• for environmental aspects up to 10 points
• for the possession of an EMAS 10 points

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Award Criteria Examples
Defining the exact evaluation method - important
to indicate how points will be awarded

• Computer leasing
• for the economic offer up to 80 points
• for energy demand even lower than that defined in
  the technical specifications up to 20
  points.Offers meeting only the requirements in
  the technical specifications will receive 0
  points. The best offer will receive 20 points.
  Other offers will receive a proportional number
  of points.

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Contract Clauses

• Contract performance clauses specify how a
  contract must be carried out.
• Environmental considerations can be included as
  long as
• they are explicitly indicated in the contract
  notice or in the contract documents
• they are related to the execution of the contract
• they are not directly or indirectly
  discriminatory (i.e. in principle, any contractor
  should be able to implement them)
• they are verifiable
• verification takes place only after the award of
  contract, as part of the contract management
  regime

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Contract Clauses Examples
Products shall be delivered in bulk and the
contractor must use reusable containers when
delivering products.
All products must indicate the dosage that should
be used in order to avoid overuse and can not be
classified as toxic (T).
If selective waste collection is introduced in
the bins of the parks, the contractor will have
to empty the bins, maintaining the sorted waste
and depositing them in the correct recycling
containers of the municipality.
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Examples in practice
Subject matter Supply of electricity from
renewable energy sources to all public utilities
of the city of Avigliana (City of Avigliana,
Italy)
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Examples in practice
Selection criteria The bidder is required to
attest that all staff involved with the
contracted services have received the appropriate
and necessary professional training (from a
technical, safety and environmental point of
view). This specifically pertains to safety
regulations, as well as the handling of equipment
and products used, including the appropriate
measures to take in case of mishandling and
possible other incidents. ... Moreover, the
cleaning personnel must be trained and informed
about the methods, the dosage and the safety
precautions pertaining to cleaning detergents,
their packaging and preparation/conditioning, as
well as the waste disposal (waste separation and
evacuation). (European Commission, Office of
Infrastructure and Logistics, tender for window
cleaning services)
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Examples in practice

• Technical specifications
• The following materials or substances may not be
  used
• Materials containing high-emission compounds,
  exceeding reference values as stipulated in the
  Regulation on harmful substances (GefstoffV),
  e.g. organic biocides, solvent based glues and
  impregnation
• CFCs and HFCs
• Aromatic hydrocarbons
• Products containing absorbed organically-bound
  halogens must be excluded from use if they are a
  fire load within the building, this applies in
  particular to
• Plastics containing halogen
• Flame retardants containing halogen
• (Tender for the Construction of the Office
  Building of the German Federal Environmental
  Agency in Dessau)

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Examples in practice

• Technical specifications
• The use of substances harmful to the environment
  shall be limited, specifically
• The critical dilution volume toxicity (CDV tox) lt
  5000l/100g of product
• The product must not contain phosphorus
• The product must not contain APEO and its
  derivatives, EDTA or NTA
• ltFurther environmental requirements also
  includedgt
• (European Commission, Office of Infrastructure
  and Logistics, tender for window cleaning
  services)

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Examples in practice

• Award criteria
• Tenders will be evaluated and the award based on
  most economically advantageous tender. The
  criteria to be applied will include
• Compliance with the environmentally friendly
  cleaning products specification sheet detailed on
  page 8. (400 points).
• Pricing, including the cost in use (where
  relevant) formulae for products offered. (400
  points)
• Delivery to any of the four detailed sites within
  a period of 10 working days from receipt of
  order. (100 points)
• Recyclable/recycled packaging as per packaging
  clause on page 5. (100 points)
• (Eastern Shires Purchasing Organisation (ESPO),
  UK, tender for cleaning products)

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Conclusions
It is possible to introduce environmental
criteria in tender documents if the following
basic principles are taken into consideration

• All environmental criteria are explicitly
  mentioned in the tender
• The wording of the criteria respects the general
  principles of transparency, non-discrimination
  and equal treatment
• The criteria relate to the subject matter of the
  contract

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Conclusions

• The criteria are objectively quantifiable -
  verifiable
• The contracting authority must accept any form of
  appropriate proof of compliance with the
  requirements set - the contracting authority must
  determine, on a case-by-case basis, from a
  technical perspective, whether the proof supplied
  by the bidder can be considered 'appropriate'

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Further information

• For the full GPP Training Toolkit please visit
• http//ec.europa.eu/environment/gpp/toolkit_en.htm
  

Toolkit developed for the European Commission by
ICLEI - Local Governments for Sustainability,
2008 Owner, Editor European Commission, DG
Environment-G2, B-1049, Bruxelles Disclaimer The
European Commission accepts no responsibility
or liability whatsoever with regard to the
information presented in this document
Pictures courtesy of Nina Osswald (slide 3),
European Ecolabel (s. 12), Energy Star (s. 13),
Peter Defranceschi (s. 30), and StockXchng Lars
Sundström (s. 2), Andrew Beierle (s. 2), Vangelis
Thomaidis (s. 2), Bern Altman (s. 2), Mark
Altamero (s. 5), Roger Kirby (s. 5), Sundeip
Arora (s. 5), Sanja Gjenero (ss. 7, 25), BSK (s.
7), Antonio Jiménez Alonso (s. 7), Terence
OBrien (s. 9), William Picard (s. 9), John
Nyberg (s. 9), Steve Woods (s. 19), Mike Johnson
(s. 39)