A contracting authority can exclude a bidder from tendering for public contracts where they fall within a ground for exclusion, for example breach of any obligations in the fields of environmental, social or labour law. These obligations include any relevant national and European law, as well as relevant collective agreements and specific international agreements.
Where a contracting authority decides that there may be a risk of exclusion grounds applying to a subcontractor, they can choose to verify this at any stage in the procurement process. This can be an effective way to help ensure a robust approach is taken throughout the supply chain. A contracting authority should only ask for verification of exclusion grounds from sub-contractors in circumstances where it is regarded as proportionate and necessary to do so. A full list of the exclusion grounds can be found in the Procurement Journey.
It is mandatory that the relevant exclusion grounds statement from the standardised statement document is included in the contract notice at II.2.14 Additional Information. A contracting authority can provide more information about specific exclusion grounds in Section II.2.14 Additional information of the OJEU contract notice. For example, it is possible to clarify what bidders should consider when responding to the questions in respect of environmental legislation.
If a bidder is in a situation which might result in its exclusion due to breach of any of the exclusion grounds, it must be given the opportunity to provide evidence to show that it has taken remedial action to demonstrate its reliability, this is known as self-cleansing. The contracting authority must not exclude the bidder on those grounds if they are satisfied that the evidence provided is sufficient to demonstrate their reliability.
Selection criteria applied to individual procurement processes must be relevant and proportionate to the subject matter of the contract. When selecting suppliers, it is essential to assess the technical capabilities that will be required for the products or services you are procuring to meet your needs. Not only is this useful from the buyer’s point of view, as suppliers that can clearly not meet the requirement will be eliminated, but it is also useful for the suppliers as they have a very clear understanding of how serious you are about sustainability and what will be essential for their submission to be successful.
Any selection criteria deemed appropriate must be tested through the format of the European Single Procurement Document (ESPD). For example, it may be appropriate to require bidders to demonstrate their experience of reducing use of scarce materials, managing materials vulnerable to supply disruption or managing waste, this could be worked into the experience related sections of the ESPD (parts 4C.1 and 4C.1.2):
‘In answering question 4C.1 please detail your understanding, experience and achievements in cost-effectively providing [insert service] services that ensure, as much as is practicable, security of supply of essential materials, products or equipment.’
An ideal response would provide evidence of applying comprehensive risk management processes to manage security of supply that may arise due to supply chain blockages, labour, other social, environmental factors or crises.
‘In answering question 4C.1 please detail your understanding, experience and achievements in cost-effectively providing [insert service] services that utilise sustainable / recycled materials.’
‘Please detail your understanding, experience and achievements in providing a managed service, as an alternative to supply of products or materials, that deliver circular economy outcomes through minimising use of materials, use of sustainable / recycled/ re-usable materials within all products and equipment used in the delivery of the service.’
An ideal response would provide: evidence of having achieved reduced use of scarce materials for clients using alternative materials and / or production methods; processes in place to recover materials for reuse or recycling; and recommendations for changes / adaptations to reduce adverse sustainability impacts in a cost-effective way.
It may be appropriate to require bidders to have environmental management standards in place, the supplier should be asked to provide confirmation of this in the quality assurance schemes and environmental management standards section of the ESPD (part IV, Selection Criteria, Section D).
An environmental management system is likely to only be relevant in the procurement of some products or services. Its requirement should be proportionate according to the market and the scope of services required, and you must be prepared to accept an equivalent to a system accredited to ISO14001 or EMAS for example. Rather than asking for a specific standard buyers could identify the elements of these standards and decide what is relevant to their organisation and the particular procurement. It would be essential that suppliers are notified of which elements they will be evaluated on. This would provide good evidence of their professional and technical ability – particularly where ‘sustainability’ is a desired outcome.
