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
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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
Requirements on bidders
• Selection Criteria
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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
“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”
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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 <90% according to
ISO 2470:1999 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 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.”
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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”
“Durability>100 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
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.
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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) < 5000l/100g of product
► The product must not contain phosphorus
► The product must not contain APEO and its derivatives, EDTA or NTA
► …<Further environmental requirements also included>…”
(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 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
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