The Environmental Protection Agency (EPA) recently published a report which found that only 24% of Government Department contracts in 2021 had used environmental criteria. This is despite a large number of EU and Irish initiatives to encourage the use of environmental criteria in public procurement processes. We consider Irish initiatives in green public procurement and how contracting authorities can incorporate environmental criteria into their procurement exercises to reduce the environmental impact of their goods and services.
What is Green Public Procurement?
Green public procurement (GPP) enables contracting authorities to choose goods, services or works with a reduced environmental impact. GPP has been on the European Commission’s and the Irish Government’s agenda for a number of years and is intended to stimulate demand for more sustainable goods and services.
There are a number of initiatives in Ireland which endorse the use of GPP, including:
- The commitment in the Programme for Government, published in June 2020, to mandate the inclusion of green criteria for all procurements using public funds within 36 months
- The Department of Public Expenditure’s Circular 20/2019 on Promoting the use of Environmental and Social Considerations in Public Procurement. It instructs Government departments to consider the inclusion of green criteria in public procurement processes, to state how they intend to incorporate green considerations in their Corporate Procurement Plan and to report on GPP in their Annual Reports
- The EPA’s Green Public Procurement – Guidance for the Public Sector which provides guidance on how to implement GPP into public procurement processes and sets out specific environmental criteria and guidance in relation to energy-related products, food and catering, heating, ICT, indoor cleaning, lighting, office buildings, paper and printing, textiles and transport
- The Office of Government Procurement’s Information Note on Incorporating Social Considerations into Public Procurement, and
- The Climate Action Plan 2021 which required:
- The OGP to update all procurement frameworks by 2023
- A review of food procurement policies for the public sector with the goal to introduce procurement of nutritious, locally-sourced food, and
- The mandatory purchase of zero-emission electric vehicles, where available and feasible by the end of 2022
In addition to these Irish initiatives, the European Commission has published a wide range of resources which include GPP criteria for a wide range of products and services.
Relevant public procurement law
Directive 2014/24/EU on public procurement encourages GPP through a number of measures, including:
- Technical specifications which can include environmental characteristics
- Inclusion of environmental management systems or standards in selection criteria
- Inclusion of environmental aspects of goods, services or works in award criteria
- Use of life-cycle costing
- Performance measures to ensure that economic operators comply with environmental obligations
GPP criteria must be related and proportionate to the subject matter of the contract and must comply with the principles of equality, non-discrimination and transparency. Contracting authorities can, for example, refer to particular eco-labels provided that the requirements for the label are linked to the subject-matter of the contract, drawn up on the basis of objectively verifiable criteria and that the label is accessible to all interested parties.
How can GPP be used?
GPP criteria can be used at a number of different stages in the procurement process, including:
Type of GPP Measures
Examples of Evidence
Bidders can be assessed on their experience and capacity to deliver environmental aspects of a contract based on factors such as:
Life cycle costing
Examples of potential life cycle costs include the following but must in each case be verifiable:
Contract performance clauses
Contracting authorities can incorporate a broad range of performance clauses into the contract, including:
Where reference is made to a particular label, certificate or standard, equivalent evidence must also be accepted. In general, it is for tenderers to prove equivalence, but the contracting authority must comply with the EU principles in evaluating this information, in particular the principle of proportionality.
With increased scrutiny on environmental issues, it is likely that GPP will increase in importance and contracting authorities will come under more pressure to incorporate environmental criteria into their procurement processes. We have significant experience in assisting contracting authorities in drafting procurement documents, including selection and award criteria, and would be delighted to assist. For more information, please contact a member of our Public Procurement team.