Aim of Paper
The aim of this paper is to present a practical summary of how sustainability issues can be addressed in public sector procurements. It is written for DCSF and its NDPBs and has been developed to augment the OGC guidance
‘Social Issues in Purchasing’ and the EU Commissions Interpretative
Communication (see Links).
Background
A widely-used and accepted international definition of sustainable development is: 'development which meets the needs of the present without compromising the ability of future generations to meet their own needs' -
Globally we are not even meeting the needs of the present let alone considering the needs of future generations.
1
The Government is committed to the achievement of sustainable development. Continued action is needed by all sectors in society to ensure that our social, economic and environmental objectives are achieved simultaneously. The scale of central civil government procurement – estimated at £13 billion per year – means that the purchase of goods, works and services by government has the potential to contribute directly to sustainable development across a wide range of sectors, from construction to information technology.
The
Government’s sustainable development policy covers both environmental sustainability and social sustainability. Environmental procurements would include energy efficiency and green energy, raw material from sustainable sources, buying environmental friendly products, transport
– reducing emissions and reducing amount of travel required. Social considerations include equal opportunities, encouragement of SMEs – 3 rd sector, local and
1 Development http://www.sustainable-development.gov.uk/what/index.htm
Lois Devey
Page 1 10 April 2020

community enterprises, local labour, opportunities for unemployed, delivering benefits for local communities/economy, Fair Trade.
The Department is committed to contributing towards the sustainability agenda through its Sustainable Development Action Plan and Sustainable
Operation of the Government Estate (SOGE), and has implemented the
DCSF Sustainable Procurement Strategy, available on the DCSF intranet and the NDPB Community.
OGC guidance Social Issues in Purchasing 2 makes clear the relationship between sustainable development objectives and the legal and policy framework for procurement. It demonstrates how to integrate relevant sustainable development issues at the various stages of the procurement process. Followed properly, there should be no conflict between relevant sustainable development objectives and obtaining value for money.
Indeed, there will be synergies between them, for instance in purchasing energy efficient goods that reduce whole life costs.
In 2003, the Government implemented a range of measures to encourage
Departments to apply minimum environmental standards across a wide range of commonly purchased products. These were known as "Quick Wins". If you are purchasing personal computers, paper, white goods, lighting and light bulbs, paint, detergents etc, you should ensure your purchase complies with the Quick Wins criteria 3 .
There are some tensions between the sustainability agenda and the EU procurement process. For example delivering opportunities for the unemployed runs the risk of encouraging discriminating practices which would be contrary to EU and UK law. However the Commission have produced an
Interpretive Document in an attempt to provide guidance 4 , and the issues are also covered in the OGC guidance 5 .
2 http://www.ogc.gov.uk/documents/Social_Issues_in_Purchasing.pdf
3 http://www.sustainable-development.gov.uk/publications/pdf/QuickWins2007vr3.pdf
4
INTERPRETATIVE COMMUNICATION OF THE COMMISSION on the Community law applicable to public procurement and the possibilities for integrating social considerations into public procurement COM(2001) 566 final http://www.bipsolutions.com/pdf/com2001_0566en01.pdf
5 http://www.ogc.gov.uk/documents/Social_Issues_in_Purchasing.pdf
Lois Devey
Page 2 10 April 2020

Advert
Specification
The following refers primarily to those procurements subject to the EC
Directives as enacted through the Public Contract Regulations 2006. However the basic principles are based on the EU Treaty (transparency, equal treatment, non-discrimination, proportionality) and so relate to all procurements undertaken by the public sector.
How can it be done and what should be avoided?
It is easier to implement sustainability issues through measures pre and post the formal tender rather than any within the formal tender period.
What can be done:-
A1. Adverts and tender documents can make it clear that fair trade options
(Fairtrade or equivalent) can be included, and welcomed in the proposal 6 .
A2. Can use variants as described in the Regs 10 Directive Article 24.
These are useful if you are uncertain about the actual existence, price or quality of the desired products. To be able to accept variants they have to be indicated in advance in the tender document and advert.
A3.
Can reserve the right to participate in the tender process to ‘supported businesses, supported employment programmes or supported factories’ i.e. where 50% of workers are disabled or unable to take up work in the open labour market. Must state reserved in OJEU notice and comply with the Regs.
7
A4. Can include an environmental and social requirement in the specification as along as they are core to the objectives of the contract.
A5. Can use European, national or multinational eco-labels as long as they are appropriate, based in scientific information and all able to understand them for example it doesn’t discriminate and is a recognised eco-label 8 .
A6. Can specify primary material for example requirement could be for recycled glass, wood from sustainable forests (see footnote 9 )
6 http://www.ogc.gov.uk/documents/Guidance_on_Fair_and_Ethical_Trading.pdf
7 Regulation 7 Public Contract regulations 2006
8 http://ec.europa.eu/environment/ecolabel/index_en.htm
Lois Devey
Page 3 10 April 2020

Selection
Stage
A7. Can specify fresh produce, or/and seasonal products-which will attract a lower carbon footprint.
10
A8. Can include sustainability aspects in technical capability section of selection pre-qual stage if they link to the subject matter of the contract e.g. Race awareness where services are to be delivered to racially diverse group or experience of design and construction of buildings to reduce carbon footprints.
A9. Can ask for Environmental Management Systems (EMS) in the Prequalification/selection stage for works and services (not goods). You can ask an organisation if they have an EMS where it is necessary for the performance of the contract i.e. when the performance of the contract gives a significant environmental impact.
11 . Do not use the EMS as an award criterion.
A10. Contract documents can state that where the winning tenderer is able
Contract
Stage to provide fair trade options that the products should be made available where required, for internal meetings, conferences etc.
A11. Contract conditions that cover sustainability objectives can be included, as long as they were mentioned in the procurement documentation, and comply with EU Treaty principles i.e. specifically are not directly or indirectly discriminatory.(See Recital 33 and article 26 of Directives). For example 12 if benefits are recognised from including a targeted recruitment
Contract
Management and training requirement for a particular procurement a clause could be inserted into the contract 10% of the person-weeks required to complete all of the works is to be delivered by new entrants that have an apprenticeship, trainee or employment contract with the contractor or a sub-contractor and are engaged in a training programme that is accepted by the Employer’.
A12. Can work with contractors voluntarily post contract to introduce measure/train workforce, encourage more sustainable practices etc.
9 If you need to buy timber you need to comply with the timber procurement rules http://www.proforest.net/cpet/uk-government-timber-procurement-policy/timber-guidance .
10 http://www.defra.gov.uk/farm/policy/sustain/procurement/pdf/foodlinks-bestpractice.pdf
11 Regs 25 (2)(h) Directives Article 48 paragraph 2f):“for public works contracts and public services contracts, and only in appropriate cases, an indication of the environmental management measures that the economic operator will be able to apply when performing the contract;”
12 See OGC Social Issues in Purchasing
Lois Devey
Page 4 10 April 2020

What you must not do :-
B1. Specifications that act as a disguised barrier to international trade are not permitted.
B2. Can not restrict/reserve participation to domestic or local suppliers or award higher marks for it. But see A7
B3. Can not specify that a proportion of any work sub-contracted must be given to domestic or local suppliers or award higher marks for it in evaluation. But see A11 and A7
B4. Can not specify that must use only local labour or a proportion of local labour to perform a contract. But see A11
B5. The use of ‘social labels’ as a technical specification are not permitted.
For example t he use of ‘Fair Trade. But see A1 and A10.
B6. Can not say electricity must be generated for example by wind power because there are alternatives e.g. water and solar that also produce
‘green’ electricity and requiring wind power would be discriminating.
B7. Can not request sustainable requirements that do not relate to the contract. For example you can not mandate the use of recycled paper in contractors offices or specific waste disposal methods on a contractors site.
B8. A bid can not be rejected or considered non compliant just because it does not include fair trade options but evaluated on most economically advantageous tender basis. But see A2, A5, A1 and A10.
B9. Can not have an award criteria based on the % of local people employed as that would be discriminating against contractors from other member states. But see A3, A8 and A11.
B10. Can not have a requirement to supply UK manufactured/farmed produce. But see A7.
B11. Can not require contractor to establish a local office.
B12. Can not have a requirement that a non-domestic organisation will find more difficult to satisfy, this is the principle from the Treaty of equal treatment which means that all competitors should have an equal opportunity to compete for the contract.
Lois Devey
Page 5 10 April 2020

Best Practice
C1. Think carefully about what you want and how it will be procured, or if it needs procuring at all (i.e. are there policy alternatives?). Analysis of the whole life costing 13 of each option should be considered. Include sustainable objectives in the requirement so that they are core to the contract. The guidance documents referenced provide detail on considering sustainability in every project but the following are reproduced from ‘Environmental Purchasing in Practice’ as a examples of what can be done.
Rethink – e.g. service instead of product?
Eliminate – e.g. hazardous material content
Reduce – e.g. emissions produced
Re-use – e.g. packaging
Recycle – e.g. paper, glass, metals
Dispose/end of life management – minimise quantities and therefore cost

Barbara Morton. A similar diagram appears in Environmental Purchasing in Practice 14

Rather than arranging a business travel contract, consider installing video-conferencing facilities at major sites to cut down on business travel by air and car.

Rather than purchasing new fax machines, consider providing users with the IT facilities to fax from their computers.

Rather than purchasing new printers for every desk, consider developing a contract for shared printing facilities including the most up-to-date energy and paper saving features.

Rather than letting waste management contracts for packaging waste, consider working with suppliers to introduce returnable/reusable packaging for delivery of the products supplied or zero/low waste goods. .
13 See http://www.sustainable-development.gov.uk/government/estates/green-guide/whole-lifecosts.htm
14 Environmental Purchasing in Practice – Guide produced by http://www.iema.net/iemanews?aid=3672
Lois Devey
Page 6 10 April 2020


Barbara Morton. This is adapted from examples that appear in Environmental Purchasing in
Practice ,
C2. Considering sustainability as the core of a procurement not as an add on.

For example if policy is to use local suppliers or SMEs, one can not discriminate in favour of them but one can structure the process to remove any potential barriers and be local supplier/SME friendly. Try dividing requirement into lots, provide tender training/awareness sessions, accept variant proposals, use the reserved contract process, ensure requirements placed on tenders are not too onerous, follow
OGC best practice 15

Example of what can be specified on food procurement- the production process e.g. organic, fresh or seasonal produce, frequency of delivery, packaging – minimise use of and/or degradable, assurance schemes – refer to EU standards or equivalent.
C3. Contract clauses can include conditions that the supplier of the winning tender has to introduce or fulfil by the beginning of the contract period or later during the contract (e g six months after contract start).Examples of contract clauses can be:
 Training of drivers in “eco-driving”

Use of biomass heating

Deliver cleaning products in bulk

Employment of long-term unemployed people
– as long as no direct or indirect discrimination and requirements are mentioned in the advert.

Taking measures to minimise impact on the environment when performing the contract.
The contract clauses must not be used as exclusion criteria
(selection phase), but the tenderer has to accept them to be able to be awarded the contract
15 http://www.ogc.gov.uk/documents/Small_Supplier_Better_Value.pdf
http://www.dti.gov.uk/bbf/small-business/index.html
Lois Devey
Page 7 10 April 2020

C4. Contract conditions should link or relate to contract performance or contract execution and be referred to in the procurement documentation preferably in both advert and contract documentation, though Reg 39 does permit including them just in the contract documents.
C5. To ensure sustainability issues are effective the contract management stage is important. An effective monitoring mechanism should be incorporated into early planning, with adequate remedies agreed in the contract for times when performance requirements have not been met.
Conclusion
Sustainable development opportunities should be considered at the planning stage of all policy developments, projects and subsequent procurements. Although there are considerations that have to be taken into consideration in public procurements there are opportunities to include sustainable aspects within them as long as it is remembered to:-

Consider sustainable development at the initiation stage of a policy development/project or procurement.

Ensure the sustainability element is linked to the subject matter or contract performance

Ensure the process is compatible with EU Treaty principles
–
The freedom of movement of goods and freedom to provide services transparent, non-discrimination, equal treatment, proportionality and mutual recognition.

Ensure evaluation criteria do not confer an unrestricted freedom of choice on the contracting authority.

The process follows requirements of the Regulations when relevant to the procurement.
Comments and Questions please contact Commercial Policy Team, DCSF –
Lois Devey lois.devey@dcsf.gsi.gov.uk
01325 392666
Lois Devey
Page 8 10 April 2020

Links
1. European Commissions step by step guide –Well worth a read, very useful and practical http://ec.europa.eu/environment/gpp/guideline_en.htm
2.. OGC's guidance on sustainability http://www.ogc.gov.uk/procurement_policy_and_the_eu_sustainability.asp
3. Quick Wins Guidance particularly for personal computers, paper, white goods, lighting and light bulbs, paint, detergents http://www.sustainabledevelopment.gov.uk/publications/pdf/QuickWins2007vr3.pdf
4. DCSF brief introduction to sustainable procurement and our sustainable procurement strategy http://ntweb1/procurementandpartnership/newsite/procurement/writtenguidanc e/sustain.htm
.
5. http://www.cannybuyer.com/
6. Timber procurement A timber procurement centre of excellence has been set up to provide guidance to help the public sector comply with standards. http://www.proforest.net/cpet
7. Action Sustainability, linked to Defra. http://www.actionsustainability.com/
8. Interpretative Communication Of The Commission on the Community law applicable to public procurement and the possibilities for integrating social considerations into public procurement http://www.bipsolutions.com/pdf/com2001_0566en01.pdf
COM(2001) 566 final
9. On this page http://www.sustainabledevelopment.gov.uk/publications/index.htm
, you'll find the UK Government
Sustainable Procurement Action Plan (incorporating the Government response to the Sustainable Procurement Task Force)
Lois Devey
Page 9 10 April 2020

10. For tips on buying Green Office Equipment - see Australia’s Green Office
Guide http://www.energyrating.gov.au/library/pubs/greenofficeguide.pdf
11. How workforce skills can be tackled throughout the procurement lifecycle http://www.ogc.gov.uk/documents/Dfes_Support_Workforce_Support.pdf
12. Race Equality and the Public Sector http://www.equalityhumanrights.com/en/publicationsandresources/Race/Page s/Publicsector.aspx
13. Food Procurement in the Public Sector http://www.defra.gov.uk/farm/policy/sustain/procurement/guidance.htm
14.
SPIN is the first and only website dedicated to supporting local authorities in their efforts to procure sustainably, and provides a 'one-stop' website containing the very best information relating to the sustainable procurement agenda http://www.s-p-i-n.co.uk/index.asp
15. Whole Life Costing http://www.sustainabledevelopment.gov.uk/government/estates/green-guide/whole-life-costs.htm
and http://www.eprocurementscotland.com/toolkit/Documents/Whole%20Life%20
Costing%203.pdf
Lois Devey
Page 10 10 April 2020

Annex 1
Manufacturer commitment
Describe the manufacturer’s approach to sustainability, providing details on any specific steps taken in the design and manufacture of products to reduce any detrimental environmental impacts and facilitate the safe and efficient disposal of equipment at end-of-life.
Energy use
Energy Star compliance or equivalent is required. Any variations, and which version, should be stated.
Product stewardship
A demonstrated commitment to product stewardship is required
This is expected to include a take-back, reuse and recycling service option with documented chain of custody through to recycling or safe disposal (including Basel Convention compliance). Special consideration should be given to how the safe disposal of refurbished equipment donated to schools and community groups can be supported when this reaches the end of its life.
Commitment to equipment maintenance
Suppliers are required to commit to maintenance support, including spares (if required), for the expected life of the equipment.
Suppliers should state the expected life in years.
Lois Devey
Page 11 10 April 2020

Resource efficiency
Describe features of the product that permit increased resource efficiency, including materials used in construction and the capability of upgrades for extending the replacement cycle to four or more years.
Reduced impacts over the whole of the product life cycle
Compliance with a recognised eco-label or recognised voluntary product declaration, or equivalent, is preferred. Examples of relevant labels are the EU Flower, Nordic Swan, TCO (Sweden), Eco
Mark (Japan), Blue Angel (Germany), Greenmark (Taiwan), AELA
(Australia) and Environmental Choice (New Zealand) or equivalents, as well as ENERGY STAR for power management. EPEAT and ECMA are examples of voluntary product declarations.
Sample PQQ questions
Sustainability and Environmental issues
All organisations whether operating in the UK or not should answer the following questions substituting where relevant the appropriate legislation, codes of practice etc, which are applicable within their domestic jurisdiction.
1.1
YES/NO
Does your organisation operate an environmental management system such as ISO 14001 or EU equivalent or EMAS?
If ‘YES’ please provide a copy of the accreditation certificate and/or a copy of the index.
Lois Devey
Page 12 10 April 2020

YES/NO
If ‘NO’ does your organisation have a statement of environmental objectives, green policy or similar documentation?
1.2
If ‘YES’ please enclose details.
In the last three years has any court made any finding of breach of statutory duty of care against your organisation?
YES/NO If Yes please provide details.
1.3 In the last three years, has your organisation been the subject of formal investigation for breaches of statutory duty of care
YES/NO If YES please provide details.
Packaging – removal and recycling
Packaging made from materials with reduced environmental impact is preferred. This includes bio-based and recyclable fill (e.g., moulded paper or starch-based loose fill) packaging that is reusable by the supplier, and packaging of non-renewable origin but recyclable in Europe. Suppliers are also required to provide for the removal of all equipment packaging after delivery.
Process improvements
Suppliers are required to state compliance with any internationally recognised environmental management standards, such as the ISO
14000 / ISO 14001 series.
Lois Devey
Page 13 10 April 2020

[You must accept all appropriate means of proof for the technical capacity to perform the contract: certificate for EMAS or ISO 14001, other types of management schemes and declarations or equivalent (article 50 / 53)]
Environment
Supplier warrants that prices for alternative products, where such products exist, which are free from harmful toxins, chemicals or gases, or which are manufactured from recycled material, and which are in any case proven to be less detrimental to the environment. Supplier agrees to provide goods/services which accord with the Purchaser’s policy on the environment. The Supplier shall, when working at the Purchaser’s premises, perform the
Contract in accordance with the Purchaser’s environmental policy, which is to conserve energy, water, wood, paper and other resources, reduce waste and phase out the use of ozone depleting substances and minimise the release of greenhouse gases, volatile organic compounds and other substances damaging to health and the environment.
Source: CIPS Boiler Plate Template
Lois Devey
Page 14 10 April 2020