Legal background

 Buyers at the authorities must comply with legally established procedures when acquiring goods or having services or work carried out. First and foremost they must take account of basic principles such as free access to public procurements, the equal treatment of candidate contractors, suppliers and service providers and the transparency of procedures.A public procurement contract is awarded on the basis of a certain structure in which various phases can be distinguished. During these phases it is possible to take account of sustainable development. The following is a very brief summary of the opportunities arising from public procurement acts:  The subject of the order is a description of the product to be procured or the service to be provided. It can also be expressed as the performance to be achieved by the desired product or the desired service. Mentioning that the contracting authority is in search of environmentally friendly or socially responsible products or services immediately brings the attention of the tenderer to sustainability.  The technical specifications are a further elaboration of the subject of the order, on the basis of which companies can assess whether they are interested in the order. The law allows the properties of the product or service to be formulated in various ways. For instance, technical standards or requirements from the specifications of certain eco-labels can be used for envirnmental aspects whilst technical provisions relating to accessibility in buildings (wheelchair users) or the readability of websites (the poorly sighted) can be referred to for social aspects. In all cases technical specifications are minimum requirements to be offered in each valid quotation from a tenderer. If one of these requirements does not appear to be met in a tender, this tender is excluded. In the awarding phase the contracting authority assesses the quality of the tenders submitted. Besides the common awarding criterion ‘price’, other criteria can also be used. As distinct from seeing the technical specifications as minimum requirements, awarding criteria allow a more dynamic assessment. Tenders that meet several awarding criteria consequently have a competitive advantage with the ultimate decision of the contracting authority. The contracting authority can itself allow awarding criteria to cope better with uncertainties about availability on the market. The awarding criteria are therefore often linked to a points system. Finally, just as for the technical specifications, awarding criteria must pertain closely to the subject of order.  For qualitative selection (exclusion) tenderers may be excluded because of their personal situation e.g. bankruptcy, fraud, sentences based on infringements of (environmental or social) law, or serious professional errors within the context of a previous order. For qualitative selection (technical capacity) contracting authoritiescan gauge the technical (environmental) ability of a tenderer to supply a certain order. Environmental care systems (EMAS, ISO 14,001, etc.) can be used to this end. For social aspects, for example, tenderers be asked to provide references to orders already carried out with a view to the integration of unemployed persons, young people, etc. in the employment process.  The conditions for the work are the contract conditions that the successful tenderer andcontracted party must comply with when carrying out the order. There are many possibilities to take account of sustainable aspects particulary in services (catering, cleaning, etc.). This may include employment clauses for young people and unemployed persons, compliance with the ILO Conventions, specific local environmental guidelines, etc.  The abovementioned phases are a sample of the various techniques that can be used to take account of sustainable development in public procurements. The selection of certain procedures or working with variants can also have their own sustainable input.  Buyers are always advised to familiarise themselves sufficiently with the market situation at the start of the purchasing process. Only in this way a realistic assessment of sustainable specifications possible with any likelihood of receiving such tenders. It cannot be repeated enough that the time a purchaser spends on thorough market research on drawing up carefully considered specifications will nearly always benefit the rest of the procurement procedure. Potential problems can then be anticipated, the worst case scenario being having to repeat the whole procedure.  The market research can be conducted by asking potential suppliers about their range of sustainable products and services, searching on the internet, consulting catalogues and brochures, enquiring among environment or social experts at their own departments, or by contacting other public bodies, help desks or umbrella organisations. Here it is important to search for products or services that can be guaranteed by many sustainable companies (free market principle). It must always be clear for potential tenderers that market research falls outside the actual public procurement procedure.   This market research can also investigate whether the order allows SMEs or community-based companies to compete. Opportunities can be offered to these types of companies by reserving certain orders or by splitting them up into smaller parts. The various files in this guide contain concrete suggestions in the framework of the abovementioned explanation. Various handbooks are in circulation with detailed information about the legal possibilities of the integration of sustainable aspects in public procurement. The following is a brief summary: - Handbook from the European Commission: Buying green  - Handbook from the European Commission: Buying social- Handbooks from Personnel and Organisation FPS: in press (May 2011)  Read more >>