The EPA is developing new guidance for the mandatory use of green pubic procurement (GPP) in Ireland. Embedding GPP in tenders is to be welcomed; it is long overdue. However, the draft guidance document raises a number of important questions as follows.
1. The systematic introduction of GPP selection and award criteria into Irish public tenders (over the EU threshold values) will potentially have a higher impact on reducing national GHG emissions and energy consumption than many other actions identified in the National Energy and Climate Action Plan.
2. The draft guidance is described as a ‘Starter Kit’. Would it not be much better if comprehensive guidance based on the EU’s GPP Toolkit was published now?
3. Quite correctly, the draft guidance hints (but does not require) that the introduction of GPP by a public body should be based on an initial needs assessment (which is a critical element of the EU GPP Toolkit).
4. Only ten product categories have been selected. Why are construction-related procurements such as roads, transport and water and waste water projects and construction products – that are included in the EU GPP guidelines – out of scope of the Irish guidance?
5. The current suite of OGP template tenders and contract documents will need to be changed to give effect to the EPA guidance once it is adopted. Why are no such amendments included in the draft guidance?
6. In compliance with Government guidelines, given the value of public contracts affected and compliance costs, should a full Regulatory Impact Assessment of the draft guidance be undertaken? A RIA could assess whether it makes economic and environmental sense to apply the GPP guidelines to procurements below the EU value threshold as is currently suggested. This requirement is arguably disproportionate. A RIA requires structured stakeholder consultation. To date, to my knowledge there has been no engagement with Irish tenderers. This is a big mistake. The engagement of Irish suppliers is critical to the successful and phased introduction of GPP. Bear in mind that many are at a competitive disadvantage compared to their EU counterparts who are well-accustomed to responding to GPP selection and award criteria for over a decade.
7. The draft guidance has been framed against the background that GPP criteria have been designed to avoid any significant impact on cost or product availability. This is potentially a cop out and could be used, for instance, by some contracting authorities as a justification for ‘doing nothing.’ In fact, Life Cycle Cost calculations, GHG emissions reductions, energy efficiency metrics and the shadow price of carbon should be, where appropriate, a compulsory element of all business cases carried out before a decision is taken to tender based inter alia on GPP criteria. The Public Spending Code could be amended to take account of the proposed mandatory use of GPP.
8. Where is the budget to give effect to the proposed action plan to integrate GPP into procurement practices in Ireland? Why are public bodies only receiving Exchequer support for GPP training and awareness raising? Why is there no counterpart funding for Irish tenderers? In addition, will Exchequer support be provided to encourage Irish tenderers to secure high environmental standards such as ISO14024? If Irish public bodies start insisting on Irish tenderers having mandatory environmental standards as a compliance pre-requisite, more public sector business will go offshore.
9. As a significant amount of energy efficient and sustainable products are imported from the UK, the absence of any mention of Brexit is a gap in the draft guidance.
10. Before detailed sector specific rules are finally agreed, should an assessment of the dynamics of the supply chain in Ireland for the sustainable products to be procured be completed.
11. Could SEAI’s TripleE and energy efficiency standards (IS 399) be explicitly referenced as compulsory selection criteria, where appropriate?
12. A bespoke set of GPP rules could be introduced for significant public sector works projects, such as the €9 billion deep retrofit programme.
13. At present, compliance with GPP guidance is voluntary. Should primary legislation be introduced to make GPP mandatory for tenders above the EU threshold? Could amendments be added to The Climate Action and Low Carbon Development (Amendment) Bill 2020?
14. Who is charge? Should the EPA, OGP, DPER, DECC and/or individual contracting responsibilities be responsible for monitoring compliance with the new GPP guidance? Which organisation will host a GPP Helpdesk?
15. In terms of GPP governance, should a Project Delivery Steering Group, including private sector contractors/tenderers, be set up?
23rd November 2020
The material in this post is purely for information and discussion and does not purport to advise on matters of law. copyright of bidservicesltd.