For services and construction contracts that result in a substantial environmental impact, it is particularly appropriate to stipulate environmental requirements on the supplier.
A tenderer can be disqualified for violations related to professional practices under chapter 10, section 2 of the Public Procurement Act (LOU) (chapter 10, section 3 of the Act on procurement for entities operating in the water, energy, transport and postal services sectors, or LUF) after a judgment has gained legal effect. This can include violations of environmental legislation. This may, for example, concern the violation of licence conditions that were made with the support of the Environmental Protection Code. An assessment must be made of the gravity of the violation, how long it has been since the violation occurred and what measures the supplier has taken to prevent it from happening again.
However, the contracting authority bears no obligation to conduct research on this nor to routinely request that the supplier provide documentation demonstrating that there are no grounds for disregarding their tender due to a violation. There are examples of what “gross negligence” may entail, but repeated inspection remarks could be encompassed.
Qualification comprises the minimum level that a supplier must fulfil to be able to participate in the procurement process, and is thus not a matter of evaluating the supplier. The qualification phase that is governed in chapter 11 of the LOU and chapter 11 of the LUF aims to determine the supplier’s ability to fulfil the contract. In terms of environmental requirements, the technical and professional ability to fulfil a contract are of the greatest interest.
Such qualification requirements may affect waste management, educational requirements, expertise, and so forth. Under chapter 11, section 15 of the LOU and chapter 11, section 12, a contracting authority can also require the supplier to describe how they intend to apply the environmental protection measures while performing a service or completing a construction contract. In this case, the contracting authority must refer to the EU joint eco-management and audit scheme (EMAS).
In accordance with the principle of mutual recognition, the authority must also accept equivalent certifications from other entities that are established in the EEA (European Economic Area). Since environmental management systems count as a qualification requirement, this should not be used as an evaluation criteria.