Transcript Slide 1
Harnessing the power of public
procurement ... while respecting
the rules
Catherine Weller
6 November 2013
The function of the EU rules
About how not what...
... Though does influence
the what to a certain extent
Link to the subject matter (1)
Recent CJEU jurisprudence clarification
“...there is no requirement that an award
criterion relates to an intrinsic characteristic of a
product, that is to say something which forms
part of the material substance thereof.”
Link to the subject matter (2)
Recent CJEU jurisprudence clarification
“It must therefore be accepted that contracting
authorities are also authorised to choose the
award criteria based on considerations of a
social nature, which may concern the persons
using or receiving the works, supplies or
services which are the object of the contract,
but also other persons.”
Practicalities–What role can labels play?
Recent CJEU jurisprudence clarification
“The obligation of the contracting authority to
mention expressly the detailed environmental
characteristics it intends to impose, even where
it refers to the characteristics defined by an
eco-label, is indispensable in order to allow
potential tenderers to refer to a single official
document, coming from the contracting
authority itself...”
Revision of the rules
Confirmation – can look at the
production process
(Technical specifications)
“Those characteristics may also refer to the
specific process or method of production [...]
even where such factors do not form part of
their material substance [...]” Article 40
Explicit reference to social
considerations as award criteria
The best price-quality ratio “shall be assessed
on the basis of criteria including qualitative
environmental and/or social aspects linked to
the subject matter of the public contract in
question” Article 66(2)
Arguable – allows reference to social
considerations as tech specs
For: “The technical specifications drawn up by
public purchasers need to allow public
procurement to be open to competition as well
as to achieve objectives of sustainability” Recital 27
Against: “In technical specifications contracting
authorities can provide such social
requirements which directly characterise the
product or service in question [...]” Recital 41
Allowing labels to be more useful? (1)
“Where contracting authorities intend to
purchase [products] with specific
environmental, social or other characteristics
they may, in the technical specifications, the
award criteria or the contract performance
conditions, require a specific label as means of
proof that the [products] correspond to the
required characteristics, providing that...”
Article 41(1)
Allowing labels to be more useful? (2)
“Where contracting authorities do not require
the works, supplies or services to meet all of
the label requirements, they shall indicate
which label requirements are referred to.”
Article 41(1)
Thank you
Catherine Weller
Lawyer
[email protected]
www.clientearth.org
www.facebook.co.uk/ClientEarth
@ClientEarth