Greening of Public Procurement
It comes as no surprise that the Programme for Government agreed by Fine Gael, Fianna Fáil and the Green Party (the Programme) features green elements across a variety of policy headings. Among the greenery, commitments have been made both in respect of public procurement and green public procurement (the sourcing goods, services or works with a reduced environmental impact).
The Programme, which was endorsed on Friday 26 June 2020 builds upon previous policy in the field of green public procurement (GPP) and recognises that GPP can host a myriad of benefits for public bodies, businesses and society as a whole. The Irish Government and the Office of Government Procurement already advocate the use of GPP, although the current implementation of GPP by public bodies remains voluntary. The proposed plans under the Programme would appear to involve a shift towards mandating the use of GPP and a requirement to include green criteria in all procurements using public funds (due to be implemented within 3 years). No details have yet been provided in respect of any thresholds at which the mandatory implementation of GPP would apply.
Current Irish GPP Policy
Current Irish policy on GPP encourages public bodies to implement green elements into their procurement processes and to consider full life cycle costs. Guidance is provided to public bodies should they wish to implement GPP, but to a great extent, flexibility remains with public bodies as to how they conduct their procurements. The public procurement rules already provide scope for the implementation of GPP should public bodies wish to do so, but as implementation has been on a voluntary basis, uptake has been mixed.
Current Irish GPP policy includes:
- the Climate Action Plan 2019 which outlines various proposals to reduce Ireland's greenhouse gases including a number of GPP measures
- Guidance on Green Procurement published by the Environmental Protection Agency
- Circular 20/2019: Promoting the use of Environmental and Social Considerations in Public Procurement which instructs Government Departments and bodies under their aegis to consider including green criteria in public procurement processes in certain circumstance and requires relevant green procurement measures to be incorporated into planning and reporting cycles
- the National Action Plan – ‘Green Tenders' (January 2012) which outlines examples of GPP best practice to assist public bodies in implementing GP
Programme for Government – "Our Shared Future"
Looking forward, the Programme includes plans which will impact on the way in which public bodies procure works, goods and services and plan for their procurement needs. Most importantly, the plans involve a shift from the current voluntary GPP regime to a regime which comprises mandatory elements.
Further details of the plans outlined in the Programme have been set out below:
- Decarbonisation of road transport - procurement framework for electric vehicles: In order to achieve emission reduction targets, there is a need to significantly decarbonise transport fleets with a particular focus on cars and light goods vehicles. One of the methods of achieving this will be by publishing a procurement framework for electric vehicles (EVs). By at least 2025, public sector bodies will only be allowed to purchase low or no-emissions cars and light goods vehicles.
- Procurement – a sustainable procurement policy: A sustainable procurement policy will be developed and implemented and the Programme contains a commitment to evaluating and managing the environmental economic and social impact of procurement strategies within the State. It is envisaged that the sustainable procurement policy will ensure strong value-for-money for the taxpayer; seek to minimise the environmental impact and optimise the community benefit of products and services procured; support innovation in supply markets to increase the availability and effectiveness of sustainable solutions; encourage suppliers to adopt practices that minimise their environmental impact and deliver community benefit; and work in partnership with suppliers to achieve common goals and continually improve performance over time.
- The Office of Government Procurement will also be tasked with updating all procurement frameworks in line with green procurement practice over the next three years.
- Waste and a Circular Economy Action Plan: Public procurement will be used to lead the transition to the "circular economy" which is aimed at maintaining the value of products and materials for as long as possible and when a product reaches the end of its life, it is used again to create further value. This will be conducted through an evidence-based approach such as relying on Environmental Product Declarations. The inclusion of green criteria in all procurements using public funds will be mandated within 36 months.
- Retrofitting - Public Sector Decarbonisation strategy and central procurement of energy-related investments and services: A new Public Sector Decarbonisation strategy for 2030 will be published and the Office of Government Procurement will play a key part in rolling out this strategy through the central procurement of energy related investments and services. The Programme states that this will include the development of policies to ensure greater use of energy performance contracts within the public service. A public sector decarbonisation target of at least 50% will be set and there will be a focus on public bodies which are not on target to deliver the existing energy efficiency target of 50% to do so, and there will also be work with other public bodies to go further.
- Public and Social Housing: The Programme outlines that the procurement policy for social housing will have strong social clauses, in line with the new green public procurement policy and will deliver strong value-for-money protections for public funds.
- Domestic Market/Local Supply Chain - local food procurement policies: There are also plans to introduce local food procurement policies for the public sector to encourage the availability of nutritious, locally sourced food in public sector areas such as schools, hospitals, government buildings and prisons.
EU public procurement rules allow for the inclusion of GPP elements and mechanisms which can be utilised to achieve more sustainable goals and procurement results. The mandatory implementation of GPP will have to be carefully considered as public bodies will need to be mindful of whether any green criteria or requirements are linked to the subject matter of the contract being awarded and whether their inclusion are compliant with the General Principles of European law which includes the principles of proportionality and transparency.
For more information on this topic please contact Anna-Marie Curran, Partner, Emma Bermingham, Solicitor or any member of A&L Goodbody's EU, Competition & Procurement team.
Date published: 6 July 2020