Portugal's plan for mandatory green public procurement (II)

Yesterday I looked into the main text of the draft Council of Ministers Resolution introducing mandatory green public procurement in Portugal. I had assumed that looking into it would be a two part affair. Turns out it will be a four part one instead since I keep finding stuff worth discussing. This second part will not cover the whole of the Annex to the Resolution but only my two main critiques to it. The criteria or contract-related critiques will come on Monday and hopefully, Tuesday.

The Annex to the Resolution is organised by contract type (16 in total) with detailed instructions on how the criteria are to be applied, where in the procedure and also the classification as mandatory/recommended/optional. It is very detailed and prescriptive to and will definitely curtail the discretion of contracting authorities to organise their procurement procedures and contractual arrangements. In essence, it amounts to micromanagement of procurement practice via a (quasi)-legislative mechanism.

There are two main critiques that can be made to the Annex. The first is on the label and certificate (over) reliance. Throughout the Annex we can see these popping up time and time again, both as award criteria and contract performance clauses/technical specifications. The way it is presented reads as if Max Havelaar never happened and the Portuguese government had no idea about the competitive implications of mandating specific labels to be complied with. By mandating or instructing the use of specific labels or certificate it is creating an obligation for contracting authorities to violate EU public procurement law. While in some instances there is a reference to 'or equivalent' after the label, as it stands it looks like an equivalent certificate. In other instances there is no care in even mentioning any sort of equivalence. As such, the message being relayed to contracting authorities is that these specific labels and certificates are to be complied without considering the ability of the economic operator to prove it complies with the standard despite not being certified.

The second main critique is one of structural organisation. While the Annex separates award criteria from contract performance clauses/technical specifications they are organised together with one following the other for each of the 16 contractual types. I have a feeling contracting authorities in practice may at some point mix the two together especially for those that imply certificates or labels as mentioned above. It would have been preferable to have a part of the Annex just for award criteria and another for contract performance clauses/technical specifications. They work very differently, serve very different purposes and as such should be kept well separate from one another.