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.
David Drabkin, Daniel Schoeni and Christopher Yukins spoke at the “Upphandlings-Konferensen” (“Public Procurement Conference”) held in Stockholm on April 25-26, 2024. The conference was very kindly hosted by Professor Andrea Sundstrand of Stockholm University.
David Drabkin
Dave Drabkin and Chris Yukins’ presentation, drawing on their report on debarment for the Acquisition Innovation Research Center, addressed convergence of the contractor exclusion/debarment systems in the United States and the European Union. A recent decision by the Court of Justice for the European Union, Infraestruturas de Portugal SA, explained that the EU Public Procurement Directive should be read to mean that procuring agencies in the EU have clear first authority to handle vendor exclusions and to assess vendors’ misconduct and remedial measures — from the U.S. perspective, a critical step in building effective risk-based debarment regimes in Europe to allow agencies to manage supply chain risk. (For background on the Infraestruturas decision, see Adrian Brown‘s recent piece in the Public Procurement Law Review and Albert Sanchez-Graell’s insightful analysis.)
Daniel Schoeni
Daniel Schoeni’s presentation — which was very well-received by the assembly of Swedish procurement attorneys — reviewed the parallels between the EU and the U.S. systems. Drawing on his PhD thesis at the University of Nottingham, Dan Schoeni explained that while the legal frameworks in the U.S. and the EU are remarkably similar, their foundations and implementations vary widely because of their different histories, politics and perspectives.
Please join the American Bar Association (ABA) Section of Public Contract Law’s Bid Protest Committee for our March 2024 meeting on “Agency-Level Protests.” Topics include:
Executive Order 12979 and the history of agency-level protests;
Factors to consider when deciding whether to bring an agency-level protest;
Jurisdictional and standing issues affecting agency-level protests;
Where and when to file an agency-level protest;
What happens to the contract award while an agency-level protest is pending;
What, if anything, the protester is provided in terms of an administrative record; and
How agency-level protests are decided and reported.
We hope that you can join us for this highly informative presentation. Lunch will be provided for those who RSVP for in-person attendance. Government personnel will have the option to pay $10 for lunch.
Panelists:
Christopher Yukins, Lynn David Research Professor in Government Procurement Law, GW Law (author, ACUS report on proposed agency-level protest reforms, and AIRC congressionally mandated report on DoD bid protests)
Scott Flesch, Member, Miller & Chevalier Chartered
Lt. Col. Bruce Mayeaux, U.S. Army, Deputy Chief Contract & Fiscal Actions Division
Rachel Park, Integrity Officer, Office of the U.S. General Services Administration Suspension & Debarment Official and Agency Protest Official
Professor Andrea Sundstrand – Stockholm University
Please feel free to join this interesting presentation on EU defense procurement and the decisions of the European Court of Justice. Professor Sundstrand of Stockholm University will discuss her article on the intersection of Member State autonomy over defense matters and the European Union’s authority to direct procurement rules.
Wednesday, 14 February 2024 – 3 pm – GW Law School, 2000 H Street NW, Washington DC – Stockton 306
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)
