Public procurement: environmental criteria to be applied to below-threshold contracts as well

“Widespread issues in the application of the regulations for minimum environmental criteria’: this is the starting point for the joint press release just published and put out for consultation by the Anti-Corruption Authority (ANAC) and the Ministry for the Environment and Energy Security. A way of providing guidance to the market and ‘ensuring maximum transparency and participation in regulatory processes’ public contracts, as well as the correct and uniform ‘application of the legislation on minimum environmental criteria’.

It should be noted that these are ‘the environmental requirements for the various stages of the procurement process , aimed at identifying the design solution, product or service that is best from an environmental perspective throughout the contract’s life cycle’. The 14 CAM decrees currently in force can be viewed on the MASE website.

The statement by Mase and ANAC points out that the 9th report by the Green Procurement Observatory, run by Legambiente and the Ecosistemi Foundation, identified a performance index for Green public procurement (GPP) in Italia is still too low, standing at 65 per cent. Article 57(2) of the Public Contracts Code stipulates, however, that contracting authorities and concession-granting bodies must include in the project and tender documentation at least the technical specifications and contractual clauses contained in the minimum environmental criteria, defined for specific categories of contracts and concessions. These criteria ‘are also taken into account for the purposes of drafting tender documents for the application of the criterion of the most economically advantageous tender’.

The CAM decrees do not contain guidelines but obligations. ‘The binding nature of the CAMs,’ states the press release, ‘is universally recognised by administrative case law, which has clarified that the provisions of the CAM decrees are not merely policy guidelines but immediately binding obligations for contracting authorities’. Furthermore, the CAMs must not merely be cited, ‘but must be effectively implemented within the procurement procedure from the design stage onwards’.

A tender notice that breaches the minimum environmental criteria is unlawful and may be challenged. This principle applies to all public contracts. ‘The obligation to include the Minimum Environmental Criteria (CAM) in project and tender documentation,’ the document states, ‘applies to all contracts, tenders and concessions, regardless of value, awarded in accordance with the Code, in both ordinary and special sectors’. Therefore, the following are also under scrutiny: sub-threshold contracts and those awarded by direct award.