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