European Commission GPP Training Toolkit Module 2 Legal

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

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 European Commission GPP Training Toolkit • Module 2: Legal framework for GPP 2

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 European Commission GPP Training Toolkit • Module 2: Legal framework for GPP 3

Introducing green criteria in tender documents • Subject Matter Requirements on products/services/works purchased • Technical Specifications • Award Criteria • Contract Performance Clauses Requirements on bidders • Selection Criteria European Commission GPP Training Toolkit • Module 2: Legal framework for GPP 4

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. European Commission GPP Training Toolkit • Module 2: Legal framework for GPP 5

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. European Commission GPP Training Toolkit • Module 2: Legal framework for GPP 6

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” European Commission GPP Training Toolkit • Module 2: Legal framework for GPP 7

Subject Matter: Examples “Contract for catering services which supply organic food” “Contract for catering services which supply local produce” “Tender for Energy Star certified computers and laptops” “Tender for energy efficient computers and laptops” European Commission GPP Training Toolkit • Module 2: Legal framework for GPP 8

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. European Commission GPP Training Toolkit • Module 2: Legal framework for GPP 9

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 <90% according to ISO 2470: 1999 or equivalent”. European Commission GPP Training Toolkit • Module 2: Legal framework for GPP 10

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 -22 o. C during winter and 26 -28 o. C during summer and a relative humidity of 50%”. European Commission GPP Training Toolkit • Module 2: Legal framework for GPP 11

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 European Commission GPP Training Toolkit • Module 2: Legal framework for GPP 12

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”. European Commission GPP Training Toolkit • Module 2: Legal framework for GPP 13

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. European Commission GPP Training Toolkit • Module 2: Legal framework for GPP 14

Technical Specifications Production and process related criteria (cont. ) However you can’t 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. ” European Commission GPP Training Toolkit • Module 2: Legal framework for GPP 15

Technical Specifications - 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. European Commission GPP Training Toolkit • Module 2: Legal framework for GPP 16

Technical Specifications: Examples “Certified Blue Angel paper” “Containing at least 80% of post-consumer waste content” “Totally chlorine free (TCF) paper” “Durability>100 years, according to ISO 9706 or DIN 6738” European Commission GPP Training Toolkit • Module 2: Legal framework for GPP 17

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 Q 11 -013 or equivalent” European Commission GPP Training Toolkit • Module 2: Legal framework for GPP 18

Selection Criteria - 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). European Commission GPP Training Toolkit • Module 2: Legal framework for GPP 19

Selection Criteria - 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. European Commission GPP Training Toolkit • Module 2: Legal framework for GPP 20

Selection Criteria - 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”. European Commission GPP Training Toolkit • Module 2: Legal framework for GPP 21

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 European Commission GPP Training Toolkit • Module 2: Legal framework for GPP 22

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) ► European Commission GPP Training Toolkit • Module 2: Legal framework for GPP 23

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 ► ► European Commission GPP Training Toolkit • Module 2: Legal framework for GPP 24

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. European Commission GPP Training Toolkit • Module 2: Legal framework for GPP 25

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 European Commission GPP Training Toolkit • Module 2: Legal framework for GPP 26

Award Criteria - formulations Different formulations are possible for award criteria: ► Compliance with a certain standard giving X points in the award phase e. 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 specifications e. 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. European Commission GPP Training Toolkit • Module 2: Legal framework for GPP 27

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. European Commission GPP Training Toolkit • Module 2: Legal framework for GPP 28

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 European Commission GPP Training Toolkit • Module 2: Legal framework for GPP 29

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. European Commission GPP Training Toolkit • Module 2: Legal framework for GPP 30

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 European Commission GPP Training Toolkit • Module 2: Legal framework for GPP 31

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. European Commission GPP Training Toolkit • Module 2: Legal framework for GPP 32

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) European Commission GPP Training Toolkit • Module 2: Legal framework for GPP 33

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) European Commission GPP Training Toolkit • Module 2: Legal framework for GPP 34

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 (Gefstoff. V), 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) ► European Commission GPP Training Toolkit • Module 2: Legal framework for GPP 35

Examples in practice Technical specifications: “The use of substances harmful to the environment shall be limited, specifically: ► The critical dilution volume toxicity (CDV tox) < 5000 l/100 g of product ► The product must not contain phosphorus ► The product must not contain APEO and its derivatives, EDTA or NTA ► ……” (European Commission, Office of Infrastructure and Logistics, tender for window cleaning services) European Commission GPP Training Toolkit • Module 2: Legal framework for GPP 36

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) European Commission GPP Training Toolkit • Module 2: Legal framework for GPP 37

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 European Commission GPP Training Toolkit • Module 2: Legal framework for GPP 38

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' European Commission GPP Training Toolkit • Module 2: Legal framework for GPP 39

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-G 2, 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 Stock. Xchng: 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 O’Brien (s. 9), William Picard (s. 9), John Nyberg (s. 9), Steve Woods (s. 19), Mike Johnson (s. 39) European Commission GPP Training Toolkit • Module 2: Legal framework for GPP 40