The Public Procurement Directive (Directive 2014/24/EU) was implemented into Danish law by the Danish Public Procurement Act with effect from 1 January 2016. Furthermore, the Utilities Directive (Directive 2014/25/EU) and the Concessions Directive (Directive 2014/23/EU) were both implemented directly by statutory orders on 1 January 2016. These regulations contain authorisation for contracting authorities to take environmental interests into consideration when offering a contract in a tender procedure, but the public procurement rules establish no obligation to do so.
The basic conditions for taking environmental interests into account are that the environmental requirements are:
- related to the subject matter of the contract (ie, related to the specific purchased goods, services or works) or related to the execution of the contract;
- in compliance with the fundamental principles of EU law, in particular the principles of non-discrimination, equal treatment, proportionality and transparency; and
- clearly stated in the tender documents and the tender notice.
In principle, environmental interests can be taken into account in all phases of a tender procedure. Thus, environmental interests can be taken into account:
- in the specification of requirements (the technical specifications);
- as a ground for exclusion;
- as a selection criterion;
- as an award criterion; and
- as a condition for the execution of the contract.
Therefore, a contracting authority can include environmental interests in the technical specifications (ie, the required quality of the purchase). For example, in planning construction works there can be a goal of low energy consumption in the use of the buildings. Furthermore, the contracting authority can require that the candidate or tenderer has a specific environmental label. The environmental label is any document or certificate or any attestation confirming that works or supplies, services, processes or procedures comply with the stipulated label requirements.
Furthermore, environmental interests may be taken into account as a ground for exclusion. Pursuant to the voluntary exclusion ground in section 137(1)(i) of the Danish Public Procurement Act, contracting authorities can exclude candidates or tenderers if the authority can prove that the candidate or tenderer has ignored obligations in force in the field of environmental law under EU law, national law, collective agreements or the obligations under environmental law deriving from conventions stated in Annex X to Directive 2014/24/EU. Pursuant to the preparatory works, the authority can prove a violation by a final judgment by the courts or by arbitration, or by experience from the authority itself or others, etc. If a contracting authority has stated in the contract notice that section 137(1)(i) of the Danish Public Procurement Act applies, the authority is obligated to exclude the candidate or tenderer if they are in violation hereof. However, the candidate or tenderer can provide sufficient documentation that the candidate or tenderer is reliable (self-cleaning). Furthermore, the exclusion period cannot exceed two years from the time of the violating act. The statutory orders on implementing the Utilities Directive and the Concessions Directive stipulate that section 137 of the Danish Public Procurement Act is applicable to the usage of both directives.
Environmental interests may also be taken into account in the selection criteria. For example, if a contracting authority is offering a contract on the handling of environmental waste, the authority may take the tenderers’ skills and experience with corresponding tasks into account, when deciding which undertakings are allowed to submit a tender.
Moreover, contracting authorities can take environmental interests into account when awarding the contract, if the authority has chosen the award criterion ‘best price-quality ratio’. The contracting authority can, for example, lay down a sub-criterion called ‘CO2-emission’ in a contract concerning the transportation of waste. The sub-criterion must be so specific that all tenderers are able to understand the criterion and be so measurable that the degree of fulfilment of the criterion can be verified. Furthermore, when a contracting authority chooses the award criterion ‘costs’ or ‘best price-quality ratio’, the authority can base costs on life-cycle costs, where costs attributed to external environmental effects are included. Pursuant to section 168 of the Danish Public Procurement Act, the contracting authority is obligated to publish the method applied in the assessment of costs related to external environmental effects.
Finally, environmental interests can be taken into account when laying down the conditions for the execution of the contract. The purpose will typically be to make the supplier safeguard environmental interests that would not otherwise be safeguarded. For example, the contracting authority can require that the supplier of certain goods takes back and reuses the product packaging of those goods. Such requirements cannot be imposed on the supplier in general. They can be imposed only on the supplier for the execution of the specific contract.
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