Portugal's plan for mandatory green public procurement (IV - vehicles)

After parts I, II and III we finally reach part IV on the purchase or leasing of vehicles (contract type - 5) For these, the Annex establishes four different award criteria and two contract performance clauses/technical specifications, with issues to be found on both, mostly due to the non-technology neutral approach to the drafting.

Award criteria

For award criteria the Annex states the following mandatory criteria:

"ii) Fuel consumption: at least 5% of criterion

iii) Running costs arising from pollution emissions(for internal combustion engines): at least 5% of criterion

vv) Pollution level from emissions: at least 5% of criterion"

Starting with ii) the choice of word ('combustivel') in Portuguese presupposes that this mandatory criteria will be applicable only to internal combustion engines despite not being explicit. For electric vehicles we refer to energy, not fuel consumption and for hydrogen ones I simply do not know. It seems then that for the Portuguese Government vehicle efficiency only matters for internal combustion and not for all types of vehicles. This is, self-evidently, discriminatory and as thus, illegal.

The same problem can be observed with iii). On this one the discrimination against internal combustion engines is explicit since only these would be subject to an analysis of pollution arising from their running. It might well be that such technology would always be at a disadvantage in practice, but the correct way would be to subject all vehicles to broadly the same test, thus meaning that when it came to electric vehicles the energy mix used to power them should be calculated as well since in general it should be irrelevant if the polluting emissions happen here or there. I say in general, because there can be very valid reasons where the local emissions are important, for example for air quality purposes, but that does not justify a broad legislative stroke protecting electric vehicles from assessment.

For the final criterion I am at a loss of what the Resolution is trying to achieve here. Would it not be easier to simply bundle this with the previous criterion as long as it was not technology discriminatory? Having said this, there is a question to be asked about what the concept of 'emissions' is contained here. Is it simply tailpipe? Energy source? Or does it included as well non-fuel/energy related emissions such as tyre particles and brake dust? The latter will finally be caught by the forthcoming EURO 7 emissions rules and they will not paint a pretty picture for the current crop of electric vehicles.

Contract performance clauses/technical specs

Here we can find two different requirements, one on the running cost for the energy consumed by the vehicle and another for running costs from emissions.

The first is divided into two sub-requirements, one for internal combustion engines and another for 100% electric ones, both about imposing a maximum cap on energy consumption for vehicles. If the text of the requirement is identical, where is the difference? Well, this requirement is mandatory for internal combustion engines but optional for 100% electric ones. As mentioned above, it appears that the environmental impacts from the energy used by electric cars are simply not as relevant as those from internal combustion engines, once more amounting to a discrimination based on the technology.

The second requirement is a mandatory cap applicable only to the running costs of polluting emissions from vehicles with a combustion engine 'in particular CO2 emissions'. The drafting is questionable in a couple of ways. First, despite looking similar to the award criteria mentioned in the preceding paragraph, the final sentence here is an addition and shows what the Government appears to be concerned with. Even the choice of words is careless though, since 'in particular' is not per se mandatory despite the requirement to cap the emissions in and of itself being mandatory. It does, however create a presumption that the problem with emissions is CO2. And if that is the case, why is this requirement only applicable to internal combustion vehicles? CO2 is CO2 whether it is emitted from the tailpipe or from a gas powerplant for instance. It seems however that the other emissions from vehicles like PM2.5 or PM10 (ie those that will be caught by EURO 7) are not of particular interest here.

General remarks

There are two main criticisms to the way the award criteria and contract performance clauses/technical requirements are dealt with in this contract type. First, the draft is clearly not tech neutral. It clearly discriminates in favour of electric vehicles at the expense of internal combustion. Then it is also not tech neutral in conceiving the rules to be applicable to all vehicle technologies since it assumes that only 100% electric or combustion engine vehicles can be purchased or leased in Portugal. What about hybrids? Or hydrogen vehicles? Are the latter 100% electric since they use fuel cells to power electric motors (usually)? What about vehicles that may use synthetic fuels? The Government seems to be assuming as well that there will not be a need for specialized vehicles where those alternative power sources may make sense since these rules are applicable across the board to all vehicles.

The second general comment to be made here is the risk of confusion between award criteria and contract performance clauses/technical specifications. Looking at the text of both it is evident they try to cover broadly the same ground, and if we account for some perplexing differences in the text, the ground covered is essentially the same. So why having them both, especially as in some cases their use is mandatory? To keep things simple it would have been preferable to have one or the other but not two overlapping as that will be prone to practical difficulties since the same issue or objective is being covered in contract award criteria and contract performance clauses/technical specifications.

While this blogpost concludes my detailed analysis of the draft Resolution, I may consider a more overarching overview about the problems detected and how they fit within the general approach towards making green procurement mandatory.