The Commission Interpretative Communication on the “Community law applicable to public procurement and the possibilities for integrating environmental considerations into public procurement” (COM(2001) 274) dates from before the adoption of the present legal framework. It clarified how former Community law offered numerous possibilities to public purchasers wishing to integrate environmental considerations into public procurement procedures. As the former legal framework did not contain any reference to environmental requirements, this Communication explained how environmental concerns may be taken into account at each separate stage of the contract award process.
Although superseded by the2004 Directives, the Interpretative Communication is still of interest, in particular where it offers guidance relating to provisions of the former procurement directives which were included in the 2004 revision. For example, the Communication examines the possibility of asking bidders to demonstrate their capacity to apply environmental management measures during the performance of the contract. Article 48(2)f of Directive 2004/18/EC now specifically enables this.
In 2011, the Commission published a "Buying Social" guide on including social considerations in public procurement. It aims to clarify what "buying social" is, and why it is important. It gives guidance to public procurers on how to be more socially-responsible in their buying policies – taking account of diversity in the workplace, training opportunities, health and safety at work, for example. The guide can be found on the website of DG Employment, Social Affairs and Inclusion.
In 2007 the Commission issued a communication entitled “Pre-commercial Procurement: Driving innovation to ensure sustainable high quality public services in Europe” (COM (2007) 799). The Communication examines the potential for public authorities to stimulate innovation by encouraging the development of new solutions in areas of public interest through procuring R&D services. Pre-commercial procurement provides a way to procure R&D services in a competitive and transparent way, which fall outside of the Procurement Directives and does not constitute State aid provided the benefits of the R&D services do not accrue exclusively to the contracting authority (participating companies obtain IPR exploitation rights) and the contracting authority consequently does not fully remunerate the R&D services provided (financial compensation for assigning exploitation rights to companies).
Pre-commercial procurement is an approach which may be useful in developing technologies, products or processes to meet the environmental objectives identified by a public authority. The Communication, along with an accompanying Staff Working Document (SEC/2007/1668), offer advice on how this can be done in accordance with the EU rules on procurement and State aid.
The Pre-Commercial Procurement (PCP) website (http://cordis.europa.eu/fp7/ict/pcp/home_en.html) provides more information about the policy framework for PCP, EU funded PCP projects, Member State initiatives, background docs, FAQs, etc.
Public private partnerships (PPPs) are one of the means available to public authorities to deliver goods and services through cooperation with private entities. As the use of PPPs has developed in many Member States, in particular in areas such as public transport and construction contracts, questions have arisen as to the extent to which these are covered by the EU rules on procurement and concessions.
The Commission produced a Green Paper on this topic in 2004 (COM(2004) 327), followed by a public consultation, Staff Working Paper and a Communication setting out detailed guidance on institutionalised PPPs.
In particular, the Communication addressed the question of whether a double-tendering procedure is required in selecting a private sector partner and then awarding subsequent contracts.
These documents are useful for public authorities to consult when considering the full range of options which may be available to meet their environmental objectives by cooperating with the private sector.
In 2009 the Commission issued a Communication entitled “Contributing to Sustainable Development: The role of Fair Trade and nongovernmental trade-related sustainability assurance schemes” (COM (2009) 215 final). This Communication examines a number of issues related to the use of Fair Trade and other private sustainability assurance schemes by public authorities, including in their tendering.
The Communication offers guidance on how contracting authorities may use such schemes within the EU procurement rules, stating:
“If a contracting authority intends to purchase Fair Trade goods, it can define in the technical specifications of the goods the relevant sustainable criteria, that must be linked to the subject matter of the contract and comply with the other relevant EU public procurement rules, including the basic principles of equal treatment and transparency. These criteria must relate to the characteristics or performance of the products (e.g. glasses made out of recycled material) or the production process of the products (e.g. organically grown).
Contracting authorities that intend to purchase sustainability assurance goods should not simply take the concept of a particular label and include it in the technical specifications of their purchases. They ought instead look at the sub-criteria underlying, for example, the Fair Trade label and use only those which are relevant to the subject matter of their purchase. Contracting authorities must always allow bidders to prove compliance with these standards by using Fair Trade labels or by other means of proof.”