Asked to address an emerging “technology” in public procurement, Tom and Chris discussed the rapidly evolving law surrounding “green procurement” (environmentally sustainable procurement). They assessed the law as a sort of flexible “technology” or “operating system” that bends and changes to reflect real-world conditions and offers a highly efficient means of sharing lessons learned across borders.
Special thanks to ProfessorJane Lynch of Cardiff University who did such a wonderful job organizing the IRSPP workshop.
On December 5, 2023 GW Law’s Christopher Yukins participated in a roundtable of distinguished experts at the COP 28 conference moderated by GW Law alumna Jellie Molino on legal advances in environmentally sustainable public procurement.
Co-hosted by the Middlesex University Dubai, University of Dubai and the University of Cambridge, the Climate Law and Governance Day (CLGD) 2023 global symposium (full program) took place both in-person at Middlesex University Dubai and online during the United Nations Framework Convention on Climate Change (UNFCCC) COP 28 in Dubai, UAE. Co-hosts of the roundtable were UNEP, CMS — International Law Firm and George Washington University Law School.
Roundtable: Exploring Low Carbon and Energy Efficient Procurement as a Tool for Paris Agreement Implementation (Montreal Room) — Zoom Link – December 5, 2023, 14:35 Gulf Standard Time (GST) (UTC+4:00) – 5:35 am Eastern US
The panel addressed the following questions:
How can the government purchasing power of 14% of GDP in high-income countries and 30% of GDP in developing countries accelerate the demand strategy for a more climate-friendly procurement system?
How can a systematic framework be aimed at the integration of low-carbon criteria in all stages of public procurement so as to enable procurement officials to overcome the challenges of setting and reaching net-zero goals?
How can emerging economies leverage their large purchasing power in promoting a more sustainable and inclusive growth through the adoption of sustainable public procurement policies?
Roundtable panelists joined from around the world:
Chairs: Hon Marc Steiner (Judge, Swiss Federal Administrative Court, online) & Adv Munir Hassan (Partner, Head of Energy & Climate Change, CMS)
Moderator: Dr Jellie Molino (Former Expert Consultant, UNEP)
Ms Anne-Claire Howard (Director, Procurement Group, UNOPS)
Mr Mohammed Shoheler Rahman Chowdhury (Director, Central Procurement Technical Unit, Ministry of Planning, Bangladesh, online)
Ms Marieke Weerdesteijn (Programme Manager, Circular and Fair ICT Pact, online)
Mr Johan Rodenhuis (Strategic Sustainability Advisor IT, Ministry of Economic Affairs and Climate Policy, Netherlands, online)
Mr B. Dabeesing (Member, Procurement Policy Office, Ministry of Finance, Economic Planning and Development, Mauritius, online)
Prof Christopher Yukins (Prof, Government Procurement Law Program, GWU Law School, Washington DC, online)
Dr Döne Yalçın (Managing Partner & Member of ESG and Sustainability Leadership, CMS)
In his roundtable presentation, Professor Yukins addressed the U.S. federal government’s initiatives in environmentally sustainable public procurement. Federal government procurement policy can have a direct impact on over 8% of the U.S. GDP, through federal procurement (roughly US$700 million per year) and federal grants (US$1.2 trillion).
The U.S. government has joined the Net Zero Government Initiative, and the Biden administration has advanced the following actions to further that initiative:
Requiring major Federal suppliers to publicly disclose emissions and set reduction targets. This initiative would center on contractor qualification (known as “responsibility” in U.S. procurement.) Under a proposed rule published in November 2022, to be considered qualified (“responsible”), major federal contractors (those with over US$50 million in annual federal obligations) would be required to publicly report their annual corporate-level GHG emissions and set targets to reduce them. Major contractors would also be required to disclose climate risks and vulnerabilities that may affect their future economic stability or their ability to deliver goods and services that are critical to Federal agency missions (see summary table below).
Changing Federal procurement rules to minimize the risk of climate change, including factoring in the social cost of greenhouse gas (SC-GHG) in procurement decisions. This initiative seeks to require agencies to consider lifecycle costs of sustainable alternatives. Under Federal Acquisition Regulation (FAR) Part 7, federal agencies must already consider the life-cycle cost of alternatives in procurement decisions. In 2021, President Biden issued Executive Order 14030, which directed regulators to amend the FAR to “ensure that major Federal agency procurements minimize the risk of climate change, including requiring the social cost of greenhouse gas emissions to be considered in procurement decisions and, where appropriate and feasible, give preference to bids and proposals from suppliers with a lower social cost of greenhouse gas emissions.” The Biden administration says that it “aims to strengthen lifecycle cost approaches to include the SC-GHG—the incremental future economic damages caused by each ton of carbon pollution—can be a valuable tool to guide agencies toward investments that are compatible with the low-carbon economy of the future.” In September 2023, the White House announced that it was directing federal regulators to incorporate SC-GHG estimates into a wide range of federal agency actions, including each agency’s procurement function. In October 2021, regulators had issued a request for comments on minimizing the risk of climate change in federal acquisitions, and a draft proposed rule (FAR Case 2021-016) is under review.
Maximizing the procurement of sustainable products and services. This initiative stresses the use of approved eco-labels to identify sustainable products for acquisition, and calls for purchase of those products whenever practicable. In September 2021, the Biden administration issued a proposed rule to update FAR Part 23 to “focus on current environmental and sustainability matters and to implement a requirement for agencies to procure sustainable products and services to the maximum extent practicable.” Specifically, the proposed rule would call on agencies to purchase the products identified by the U.S. Environmental Protection Agency (EPA) under various eco-labels. Under the proposed revised FAR 23.103, agencies would be required to “procure sustainable products and services . . . to the maximum extent practicable.” Procuring sustainable products and services would be considered practicable unless the agency could not acquire products or services (i) competitively within a reasonable performance schedule; (ii) that meet reasonable performance requirements; or (iii) at a reasonable price.
Establishing the Net-Zero Emissions Procurement Federal Leaders Working Group, including a Buy Clean Task Force, to drive strategy and implementation. This initiative is part of the federal government’s overall strategy for reducing climate change. These federal officials would work within the Biden administration’s broader Federal Sustainability Plan Strategy Mix, which includes procurement as a core pillar of the Biden administration’s overall plan for meeting sustainability goals.
Summary of Requirements Under Proposed Rule Requiring Federal Contractor Disclosure of GHG Emissions (Source)
Global challenges related to the climate changes as described in the Paris Agreement influence various aspects of public policies across the world. This leads us to observe in the U.S. presidential candidate Joe Biden’ s New Green Deal, and in Europe, where for example the New Industrial Strategy for Europe calls for the support and implementation of the green aspects in public procurement. Also, the New European Green Deal and the Just Transition Fund should have a significant impact on the public procurement market and regulations.
Although Green Public Procurement (GPP) is still a non-mandatory legal instrument, the European Commission has opted for this solution as an effective measure in the EU’s efforts to become a more resource-efficient economy. GPP can help stimulate a critical mass of demand for more sustainable goods and services which otherwise would be difficult to get onto the market.
The new European initiatives are important not only for European public authorities and contractors but also for U.S. enterprises interested in Transatlantic cooperation.
The Institute of Law at the Univeristy of Silesia, Association ‘’Pro Silesia,’’ with the support of the George Washington University’s Government Procurement Program, invite you for a 90-minute, free webinar concerning current challenges and opportunities for green public policies and their influence on public procurement markets in the USA and the European Union, with discussions with leading specialists from both sides of the Atlantic.
Agenda and Speakers:
Prof. Jerzy Buzek, Member of the European Parliament, President of the European Parliament in the years 2009–2012, Prime Minister of the Republic of Poland in the years 1997–2001
New Green Deal and Just Transition Fund
Prof. Alexandra Harrington, University of Albany School of Law, Assistant Director of the Global Institute for Health and Human Rights (USA), Adv.Magdalena Stryja, University of Silesia in Katowice, Just Transition Research Group (Poland)
Intersections between Global Governance Regimes and Climate Change Law
Prof. Christopher Yukins, George Washington University, Washington D.C. (USA)
The U.S. experiences with the support of environmental aspects in government contracting.
Dr Wojciech Hartung – Counsel, Domański Zakrzewski Palinka (DZP) (Warsaw)
European Green Deal and Just Transition Fund reflections on the European Public Procurement legal regime
Adv. Katarzyna Kuzma, DZP, Public Procurement Law Association (Poland)
The support of the green effects in the new Polish Public Procurement Act
Question and Answer Session
Moderator:
Prof. Michał Kania, University of Silesia in Katowice
Speakers Biographies:
Prof. Jerzy Buzek – Member of the European Parliament continuously since 2004, and in the years 2009-2012 – its president. In the European Parliament prof. Buzek is a member of the Committee on Industry, Research and Energy. In 2016, Euractiv recognized him as one of the three most influential people of European energy policy. He was ranked by the Rzeczpospolita daily as the best Polish MEP in 2008 and 2018.
In the years 1997-2001 he served as the Prime Minister of the Republic of Poland; his government carried out reforms of administration, education, health, pensions and mining. Professor Buzek also introduced Poland to NATO and started negotiations on its membership in the European Union. Knight of the Order of the White Eagle.
Prof. Alexandra Harrington – author of the book International Organizations and the Law and the forthcoming International Law and Global Governance: Treaty Regimes and Sustainable Development Goals Interpretation. Alexandra is the Director of Studies for the International Law Association Colombian branch, a member of the International Law Association Committee on the Role of International Law in Sustainable Natural Resource Management for Development, and an adjunct professor at Albany Law School. She also provides guest lectures globally on topics related to international law, environmental law, global governance and sustainable development. Prof. Harrington has served as a consultant for entities such as the Commission for Environmental Cooperation of the North American Agreement on Environmental Cooperation and UN Environment.
Prof. Harrington’s publications address a variety of fields relating to international law, including environmental law, legal issues relating to climate change, natural resources regulation, international organizations, international human rights law, international child’s rights, international trade law, corporate social responsibility, and criminal law. Prof. Harrington routinely presents her works at domestic and international conferences.
Adv. Magdalena Stryja performs the function of the Chair of the Science and Development Committee with the District Bar Association in Katowice. She is Poland’s first member of the international organization: Centre for International Sustainable and Development Law. Magdalena is a member of the interdisciplinary Polish Research Group Just Transition, which aims at developing and implementing the concept of fair transformation with a view to transforming the economy, lifestyle, culture and social values in Silesia in the face of climate change. She is a member of the University of Silesia-based Bioethics Research Group dealing with legal and bioethical aspects of medicine and animal protection as well as environmental and climate protection. She is also a member of The Labour Law and Social Policy Research Group at the Institute of Legal Sciences at the University of Silesia.
Magdalena delivers lectures on labour law and social policy. Her research interests also encompass legal aspects of climate change, including the social aspects of retraining employees.
Prof. Christopher Yukins – serves as co-director of the government procurement law program at George Washington University Law School, and has taught there on contract formations and performance issues in public procurement, bid protests and claims litigation, state and local procurement, Anti-corruption issues, foreign contracting, procurement reform, and comparative and international law. He has testified on issues of procurement reform and trade before committees of the U.S. Congress and the European Parliament. He is a visiting professor at the Université Paris Nanterre, where he lectures annually, and has taught a week-long course on procurement issues and corruption at the International Anti-Corruption Academy (Austria).
Prof. Yukins has spoken as a guest lecturer at institutions around the world, and he was a contributing editor to the UN Office on Drugs and Crime manual, Guidebook on Anti-Corruption in Public Procurement. He is an active member of the Public Contract Law Section of the American Bar Association, and is a member of the Procurement Roundtable, an organization of senior members of the U.S. procurement community. He is a faculty advisor to the Public Contract Law Journal, is a member of the editorial board of the European Procurement & Public-Private Partnership Law Review and is on the advisory board of The Government Contractor. He has worked on a wide array of international projects on capacity-building in procurement, and he was an advisor to the U.S. delegation to the working group on reform of the United Nations Commission on International Trade Law (UNCITRAL) Model Procurement Law. Together with his colleagues, he runs a colloquium series on procurement reform at The George Washington University Law School. In private practice, Professor Yukins has been an associate, partner and counsel at leading law firms; he is currently counsel to the firm of Arnold & Porter.
Dr Wojciech Hartung – counsel at the Polish law firm Domański Zakrzewski Palinka, advises on infrastructure projects carried out under the Public Procurement Law or using partnership structures, i.e. PPP, concessions and other forms of co-operation between public and private partners, specialises in public-public cooperation (in-house procurement) issues. They have been addressed in his PhD dissertation on the “Independence of a basic local government unit upon the organisation and provision of municipal services in light of European law and Polish legal order’’. Wojciech is a Member of a working group set up by the Ministry of Development to review the law on public-private partnerships and to draw up a government policy in this respect. Until March 2009 dr Hartung acted as the Director of the European Union and International Co-operation Department at the Public Procurement Office. Wojciech was also Polish representative on the European Council’s Working Group on Public Procurement and on the Advisory Committee for Public Works Contracts set up by the European Commission. Wojciech is a member of Public Procurement Law Association.
Adv. Katarzyna Kuzma – partner at the Polish law firm Domański Zakrzewski Palinka and heads the team providing services relating to Polish and European public procurement law. She has extensive experience in advising both public and private entities operating in various sectors (including construction and engineering services, environmental protection, pharmaceutical and energy) on projects carried out in the traditional form (public procurement) and those based on partnership structures in the broad meaning of the term (PPP, concessions).
The advice Katarzyna renders covers all stages of procedures (including representation before the National Appeal Chamber and common courts) and performance of public contracts, including inspections and financial adjustment procedures. She actively promotes implementation of compliance systems in the area of public procurement, with special focus on bid rigging. Katarzyna is also the Vice-President of the Public Procurement Law Association.
Michał Kania – professor at the Silesian University in Katowice, legal adviser with 15 years of experience, member of the Just Transition Research Group. Michał is also an active member of the Public Procurement Association and legal consultant with the specialization in Public-Private Partnership and public procurement law, Visiting Fulbright Scholar at the George Washington University (2018-2019), Fellowship of German Academic Exchange Service at the Ludwig Maximilian University in Munich (2017), speaker at the Polish and international conferences, initiator and lecturer at the Postgraduate Studies in Public-Private Partnership and Public Procurement at the Silesian University in Katowice, independent adviser for the Polish Ministry of Development for the concept of the new Polish Public Procurement Act, adopted on 11 September 2019, plenipotentiary of the President of the University of Silesia for PPP projects.
On May 30, 2019, there will be a conference on U.S. – EU environmental issues in Rome; the program for the colloquium, which will cover issues from climate change to sustainability in procurement, may be downloaded below.
Dr. G. Antonelli (B.A., M.A., J.D., LL.M, Ph.D.); Prof. M.V. Ferroni (Prof. of Administrative Law and Environmental Law at Sapienza University Department of Political Science); Prof. F. Giglioni (Prof. of Administrative Law, Environmental and Health Law. Director of the Ph.D. Program in Public, Comparative and International Law at Sapienza University Department of Political Science)
The conference was launched by Dr. Giovanni Antonelli, of the “Sapienza” University of Rome, with the support of Prof. F. Giglioni and Prof. M.V. Ferroni of the University’s Department of Political Science, and the Center for American Studies. Dr. Antonelli writes:
For over the last year we have
been thinking how to engage some of the most eminent international experts for
empowering our common interest and work towards potential models of sustainable
development.
Built upon the shared belief
that the current political divide felt over our continents is polarizing and
alienating not only our cultures but often
it is even estranging groups and movements that have similar values and
goals, the “U.S.–E.U. Environmental Law Colloquium” aims to encourage participation
and collaboration between American and European Scholars on a regular basis, to
share the progress of our researches and to launch new initiatives and projects
for the implementation of the environmental policies.
For the organization of this first
edition we do want to acknowledge the important role played by the Sapienza
University Department of Political Science and by the Center for American
Studies of Rome, without whose fundamental support this international project
would not have been carried out.
We would like to thank all the speakers who have decided to join our project, with a specific regard to Prof. J. Freeman (Harvard Law School), Prof. M. Gerrard (Columbia Law School), Prof. M. Scanlan (Vermont Law School), Prof. C. Yukins (GWU School of Law) and Prof. J. Dernbach (Widener University).
The all-day colloquium will begin at 9:30 a.m. on May 30, 2019, at the Center for American Studies, Via M. CAETANI, 32, Rome.
For information and reservations: giovanni.antonelli@uniroma1.it
On April 5, 2019, scholars from Pace University, the University of Copenhagen and George Washington University hosted an all-day roundtable on emerging issues in sustainable public procurement, through Pace University’s Elisabeth Haub School of Law.
The First Annual Transatlantic Roundtable on Sustainable Public Procurement was hosted by:
Pace Environmental Law and the Elisabeth Haub School of Law,
The Centre of Enterprise Liability, Faculty of Law, University of Copenhagen, and
The George Washington University Law School’s Government Procurement Law Program.
Researchers and renowned specialists from around the globe discussed recent developments in the field of sustainable public procurement. The global value of public procurement spending is enormous. OECD countries alone spend a total of a trillion U.S. dollars per year, and each year their governments spend around 14-19% of GDP on the purchase of services, works and supplies. In many sectors such as energy, transport, waste management, social welfare, education and health services, public authorities are the principal buyers. The sheer scale of public procurement spending can literally create and shape markets, impact lives of citizens across the country, and foster greater sustainability in terms of environmental protection, public health, and economic equality.
Speakers included:
Professor Jason J. Czarnezki, Kerlin Distinguished Professor of Environmental Law and Associate Dean, Elisabeth Haub School of Law at Pace University,
Marta Andhov, Assistant Professor, Faculty of Law, University of Copenhagen, Denmark,
Professors Steven Schooner and Christopher Yukins, George Washington University Law School, Washington, D.C., and
Nicole Darnall, Associate Dean and Professor, School of Sustainability Arizona State University
This event was held at Pace University’s Downtown Campus – 1 Pace Plaza, on the 18th floor in the North and South Boardrooms.
Introductions Jason J. Czarnezki –Kerlin Distinguished Professor and Associate Dean, The Elisabeth Haub School of Law at Pace University, New York
Marta Andhov – Assistant Professor, Faculty of Law, University of Copenhagen, Denmark; Haub Visiting Scholar at Pace University’s Elisabeth Haub School of Law
Session 1 : Does the United States need a sustainable public procurement legal framework?
U.S. Federal Public Procurement – A lack of interest in sustainable purchasing? – Steven Schooner, Nash & Cibinic Professor of Government Procurement Law, The George Washington University Law School
Do state level and local contracting authorities drive the sustainable procurement agenda in the United States? – Jason J. Czarnezki, Kerlin Distinguished Professor and Associate Dean, The Elisabeth HaubSchool of Law at Pace University, New York City
Sustainable Procurement in Local Governments – Nicole Darnall Associate Dean and Professor, School of Sustainability, Arizona State University
Session 2: European Union – A leader in sustainable purchasing?
How we got to the Strategic Public Procurement Agenda-Understanding the EU legal framework – Roberto Caranta, Professor of Administrative Law, University of Turin, Italy
All that glitters is not gold – Paradoxes of EU Public Procurement Law – Marta Andhov, Assistant Professor, Faculty of Law, University of Copenhagen, Denmark; Haub Visiting Scholar at the Pace University’s Elisabeth Haub School of Law
The Evolution of Sustainable Procurement in the United Kingdom: From Thatcherism to the Social Value Act and a widening and deepening policy agenda. Where next post-Brexit? – Michael Bowsher QC – Director of the Distance Learning Diploma and Masters in Public Procurement Law at King’s College London; Visiting Professor, Dickson Poon School of Law, King’s College London; Barrister (Monckton Chambers), England & Wales, Northern Ireland, Republic of Ireland
Session 3: WTO & UNCITRAL
SPP: International perspectives, including under the UNCITRAL Model Law and the WTO Government Procurement Agreement – Christopher R. Yukins – Professor of Public Procurement Law and Co-Director, Government Procurement Law Program, George Washington University Law School
Sustainable public procurement under the OECD and the multilateral development banks- Carol Cravero, PhD student at the University of Turin, Italy and University of Paris Nanterre (CRDP), France
Sustainable procurement at UNOPS –Benedetta Audia, Corporate Legal Advisor, Head of the Commercial and Institutional Law Practice, Legal Group, United Nations Office for Project Services, New York
Session 4: Selected Countries and Their Experiences
Canadian experience with Sustainable Public Procurement –Paul Emanuelli,General Counsel and Managing Director, Procurement Office, Toronto
Challenges and the future of sustainable public procurement in Poland – Michal Kania, Professor, Silesian University, Poland; Fulbright Visiting Scholar The George Washington University Law School
Brazilian experience with SPP – Luciana Stocco Betiol, Professor – Department of Social and Legal Sciences, São Paulo School of Business Administration – FGV/EAESP
An Analysis of American Governance through the U. S. Federal Government’s Green Procurement System
ZHAO Yong, University of International Relations, Beijing, email: yongjao@hotmail.com
(Text is in Mandarin, and available from the author)
[Abstract]
The formation of the green procurement system of the U. S. Federal Government is complex, the influence factors being numerous and the contents being comprehensive. This dissertation aims to provide a reference for the improvement of China’s government procurement system through exploring the cause, contents, features and evolution of the American green procurement system. Furthermore, by in-depth studying the American green procurement system as a breakthrough point so as to analyse the social problem conduction mechanism, interest distribution mechanism and the power allocation mechanism of the U. S. Federal Government, this dissertation tried to discover the characteristics and means of the American governance, promote transforming the mode of China’s Governance and enhance Chinese Governments’ ability of governance and solving the practical problems of the current Chinese society.
After the World War II, the rapid development of American economy aggravated the degree of environment deterioration. An endless stream of environmental incidents and the enhancement of environmental awareness have promoted the awakening of public environmental interests. With the help of environmental organizations and research institutions, the public environmental interests can be effectively expressed, which prompted the politicians to address environmental issues into the political agenda. Then the environmental policies were shaped after the multi-player game. From 1960’s, the importance of environmental policy in the United States has been rising, with the changing of its connotation and the value orientation. In the same period, the Federal Government’s procurement policy stepped into the policy-stage after the liberalization-stage and the standardization-stage. The the overlap of the dense introduction stage of environmental policies and the policy-period of government procurement formed the basis for establishing green procurement laws and actions.
In the process of the formation of the environmental legislation system in America, the macro path is the self-generation and the micro path is bargaining. Citizens, environmental protection organizations, interest groups, administrative agencies, the sub-committees of the Congress and other parties in the process of the legislation played different roles. The development of the governance system is embodied in the progressive development path, during which the interests’ equilibrium of the participating parties in the evolution has been reached. Through environmental legislation, the federal government expanded its powers. In the aspect of government procurement, the laws were becoming more and more plentiful. The objectives were increasingly rich. The maturity of the procurement system makes it possible to combine the the social-economic laws and the procurement laws.
Due to the vast scale of government procurement, the multiplier effect and the little political resistance, the executive branch of the Federal Government launched a series of green procurement programs based on environmental legislation and procurement legislation. By studying the green procurement programs with different legal bases, various objects and goals, diversified implementation bodies and multiple challenges, we could recognize the complexity of governance of the environmental problems.
In order to achieve the objectives of environmental governance, it is necessary to transform the policies, laws and programs into government procurement activities by the contracting officers’ and suppliers’ behavior. The contracting officer will, under the guidance of the policy, laws and the green procurement programs, weigh a variety of the procurement factors and the environmental factors, formulate the green procurement plans and implement green procurement through a variety of procurement tools. Finally, the green governance on the supplier was achieved through the government contract. During the process, the Federal administrative agencies, the Congress, the courts, and the public oversight or supervise the procurement in different forms.
From China’s perspective, the enlightenment of the U. S. Federal Governments’ green procurement system and the governance mode is: it is necessary to establish and improve the environmental problems transmission mechanism and a balanced interest distribution mechanism; to advance green procurement programs cautiously; to actively participate in the GPA negotiation; and to react the climate change negotiations carefully.
[Keywords] U. S. Federal Government, Green Procurement, Governance
