Implementation of Green Procurement in the Swedish Procurement System

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Implementation of Green Implementation of Green Procurement in the Swedish Procurement in the Swedish

Procurement SystemProcurement System

Linda Dahlström “The New Public Procurement Procedures and Instruments”

Ankara 5-6 February 2008

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Public Procurement in Public Procurement in SwedenSweden

Current situationCurrent situation

40 billion EUR 10 000 contracting entities

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Legal Framework for GPP Legal Framework for GPP in Swedein Swedenn

EC Treaty Government Procurement Agreement

(GPA) Public Procurement Directives

(2004/18/EC and 2004/17/EC) Judgments of the European Court of

Justice The Swedish Public Procurement Acts

(2007:1091, 2007:1092)

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The ”Legal” Way forwardThe ”Legal” Way forward

New Swedish procurement legislation which implements the provisions of the procurement directives. (January 2008)

A proposal that contracting authorities should set environmental requirements where appropriate with regard to the nature of the procurement.

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Background GPP in SwedenBackground GPP in Sweden 90’s - Early engagement by NGO:s and

in local Municipalities, County Councils and in some Governmental Agencies

Committee for Ecologically Sustainable Public procurement appointed by the Swedish Government 1998-2001

Development of the Swedish Instrument for Ecologically Sustainable Procurement (EKU) 2001

Swedish Environmental Protection Agency survey on GPP 1998, 2002, 2004, 2007

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Background GPP in SwedenBackground GPP in Sweden

Strong support for GPP from the Prime Minister in the Governmental declaration in 2002

Swedish Action plan 2007-2009 Legislation on green cars bought or

leased by Governmental Agencies 1 Jan 2006

Developments Sustainable procurement (social,

ecological and economic dimension)

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The government’s action plan for ’07 – The government’s action plan for ’07 – Environmental public procurementEnvironmental public procurement

Purpose to increase the level of environmental procurement

Assessment of the current situation Target for the next three years Measures for achieving the targets Clarification of the various actors’

responsibilities

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Assessment of the current situation - Questionnaires, case studies 60 % of central government, regional

and local agencies regularly specify environmental requirements

In 1/3 of the cases environmental requirements are framed in such a way that they have no effect!

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Main Obstacle

- Lack of knowledge and experience on how to set environmental requirements

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The government’s action plan for ’07 The government’s action plan for ’07 Environmental public procurementEnvironmental public procurement

VisionWherever possible according to the law on public procurement, authorities at government, municipality and county levels should issue requirements for environmental issues in the public procurement process

This must not involve an increase in the administrative burden for companies or making participation harder for companies, especially small companies.

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VisionPublic purchasers and suppliers have access to tools, training and other types of support with regard to environmental issues in connection with public procurement

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Objectives1. The proportion of authorities at government, municipality, and county levels that regurlarly issue well-formulated environmental requirements should increase from the current level of 60 % to 80 %2. The proportion of state framework agreements with well-formulated environmental agreements should increase from the current level of 63 % to 90 %

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Measures1. State authorities, guidance and skills2. Involve politicians and other decision-

makers at local and regional level3. Secure the skills among purchasers4. Offer an effective and simple tool5. National targets for public consumption

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State authorities, guidance and skills- environmental requirements in the state framework agreements

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The government’s action plan for’07 The government’s action plan for’07 Environmental public procurementEnvironmental public procurement

Involve politicians and other decision-makers at local and regional level- information campaign- conferences

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The government’s action plan for’07 The government’s action plan for’07 Environmental public procurementEnvironmental public procurement

Secure the skills amongs purchasers- set up a helpdesk for GPP- A web-based basic course on environmental requirements- Information material produced on

environmental requirements and the legal framework

- offer integration of GPP in existing procurement training courses

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The government’s action plan for ’07 The government’s action plan for ’07 Environmental public Environmental public procurementprocurement

Offer an effective simple tool for GPPl- Environmental criteria reviewed, quality, content, level,user-friendliness and functionality- The tool re-launched and marketed

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Cost benefit analysis Follow up - The Swedish

Environmental Protection Agency should continouously follow up the development of environmental requirements in public procurement

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Involve allr elevant stakeholders in the process

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The Swedish Environmental The Swedish Environmental Public Procurement StructurePublic Procurement Structure

Ministry of Enterprise

Ministry of FinanceThe Swedish

Public Procurement Act

The Swedish Competition Authority

(supervision)

Ministry of Environment

10 000 Procuring entities

290 Municipalities12 County Councils

450 Central Authorities

Swedish Environmental Management

Council

Swedish Environmental

Protection Agency

The National Financial Management Authority, Coordination of Central Procurement

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The Swedish Environmental The Swedish Environmental Managment Council (MSR)Managment Council (MSR)

Jointly owned by the Swedish state, the Swedish Association of Local Authorities and Regions and the Confederation of Swedish Enterprises.

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MSR – GUIDANCE FOR SUSTAINABLE PROCUREMENT Internet based Criteria for 9 product areas Guidelines and education Aid and support (helpdesk) for

public procurement officers purchasers

State financed, work contribution from different stakeholders

Staff- 8 full time

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MSR – consensus processMSR – consensus process

Pre-study (lca, market analysis, stakeholder analysis etc)

Working group - start

Referral

Final criteria proposition

Referral consideration

Working group - stop

Decision committee

Publishing

Prioritized products -

Board decision

Open stakeholder meeting

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WebsitesWebsites

The Swedish Competition Authority, supervisory authority for public procurement in Sweden (www.kkv.se)

The Swedish Environmental Management Council (www.msr.se)

The Swedish Environmental Protection Agency (www.naturvardsverket.se)

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The Swedish Legal The Swedish Legal Framework below the EC Framework below the EC

thresholdsthresholdsLinda Dahlström

Ankara 5-6 February 2008

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ThresholdsThresholds

Works EUR 5 278000

Supplies/services Utilities EUR 422 000 Central level EUR 137 000 Other contracting

authorities EUR 211 000

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Principles in the Treaty applying to Principles in the Treaty applying to public contractspublic contracts

non-discrimination on grounds of nationality -Article 12

free movement of goods and prohibition of quantitative restrictions on imports/exports and measures having equivalent effect –Art. 28 -30

freedom of establishment -Article 43 et seq. freedom to provide services -Article 49 et

seq.

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Fundamental Principles Fundamental Principles Deriving from Treaty ProvisionsDeriving from Treaty Provisions

equality of treatment obligation of transparency proportionality mutual recognition

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ECJ Case LawECJ Case LawThe ECJ has jurisdiction under art.177 of the EC Treaty to interpret Community law where the situation in question is not governed by Community law but the national legislature, in transposing the provisions of a directive into domestic law, has chosen to apply the same treatment to purely internal situations and to those governed by the directive, so that it has aligned its domestic legislation to Community law.(C-28/95 A. Leur Bloem)

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ECJ Case lawECJ Case law “The mere fact that the Community

legislature considered that the strict special procedures laid down in those directives are not appropriate in the case of public contracts of small value does not mean that those contracts are excluded from community law.”

“… bound to comply with the fundamental rules of the Treaty.” (C-59/00 Bent Mousten Vestergaard, p 20)

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ECJ Case lawECJ Case law “That obligation of Transparency which is

imposed on the contracting authority consists in ensuring, for the benefit of any potential tenderer a degree of advertising sufficient to enable the services market to be opened up to competition and the impartiality of procurement procedures to be reviewed.” (C-324/98 Telaustria p 62, C- 458/03 Parking Brixen p 49)

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ECJ Case lawECJ Case law(C-195/04 Opinion of Advocate general)(C-195/04 Opinion of Advocate general)

A sufficient degree of publicity for low value contracts ? - “not necessarily an obligation to publish” - “.. The appropriate degree of publicity is to be determined by reference to the potential market for that contract.”- “ a sufficient degree of publicity for low value contracts a matter for national law”

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Objective of public procurement Objective of public procurement policy outside the scope of the policy outside the scope of the

directivesdirectives Same as above thresholds ?

(Establishment of a single market, Open up public procurement to competition, value for money, anti-corruption tool)

Public Procurement directives suitable legislation also for below EU thresholds ?

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Public Procurement Outside the Public Procurement Outside the scope of the EU directives – scope of the EU directives –

The Swedish ExampleThe Swedish Example ~ 95 % of total nr of procurement

procedures ( 200 000) ~ 80 % of total procurement value ~ 32 billion EUR Legal framework below thresholds

applied by many contracting entities (10 000) and procurement officers

Nr of complaint procedures ???

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Background Background 1952, Procurement Ordinance

(domestic preferences removed) 1973 Procurement Ordinance and

Procurement Regulation 1994 The Swedish Public

Procurement Act (interpretation of the rules for procurement outside the scope of the EU directives in accordance with the ”old” procurement regulation

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The Swedish Public The Swedish Public Procurement Acts Procurement Acts

Two new laws in force 1st January 2008 (classic and utilities) 16 chapters: (1-2 general provisions, 15 procurement outside the scope of the directives, 16 remedies

Provisions regarding public procurement outside the scope of the directives presently drafted by government with the purpose to simplify (implemented ? 2009, 2010)

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Chapter 15 (PP ACTS)Chapter 15 (PP ACTS)

Contracts below the EU threshold values

B-services irrespective of value Secrecy or other special restrictions

in respect of national secrecy – regardless of value

Defence, supplies and services which have no civil use – regardless of value

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Procedures (Procedures (Chapt 15 PP Acts)Chapt 15 PP Acts) Simplified Procedure: - all suppliers entitled to submit tenders - negotiation possible with one or

several tenderers Selective Procedure: - all suppliers entitled to apply to submit

tenders - the contracting entity invites certain

suppliers to submit tenders - negotiation possible with one or

several tenderers Informal Procedure: - No formal requirements

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Publication requirementsPublication requirements Simplified procedure: the notice shall

be published in an electronic database which is publicly accessible or through the publication of contract notices in some other way - which leads to efficient competition.

Selective procedure: the invitation to apply to tender should be published in an electronic database which is publicly accessible

Content of Notice

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Written request for Written request for tenderstenders

Under certain circumstances the contracting entities may send a written request for tenders to a supplier without publishing a contract notice.

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Informal Procedure Informal Procedure

Low value Particular reasons, such as great

urgency resulting from circumstances which could not have been anticipated and are outside the control of the entity, may procurement take place without formal requirements

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Informal Procedure Informal Procedure

The contracting entity should if needed establish an internal policy for the use of the informal procedure

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Time limitsTime limits

Simplified Procedure- Reasonable time

Selective Procedure- Reasonable time (never less than 10 days from the day on which the invitation to apply was published)

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Tender opening Technical specifications

- Not limited except reference to Environmental specifications

Award of contract- Relative weighting or Ranking

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RemediesRemedies

Review and Damages same above and below EU thresholds

County Administrative Court (Review) District Court (damages)

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Thank You !Thank You !

Linda DahlströmSwedish Competition Authority

[email protected]

Documents

Implementation of Green Procurement in the Swedish Procurement System