Specific contract conditions do not need to be fulfilled by the supplier when the tender is submitted, but must be implemented during the course of the contract with some respite.
Under chapter 6, section 13 of LOU and chapter 6, section 14 of LUF, environmental requirements can be stipulated related to how a service or construction contract is to be performed. The conditions must be accepted by the tenderer to be valid during a possible contract period.
The term “specialc contract terms” (or “additional conditions”), was coined by the EU Court of Justice in two cases of the application of the older procurement directives. The older directives did not contain any regulations that could be applied for more socially compatible considerations and the Court expressly stated that such conditions could be established to, among other goals, promote equality, combat unemployment and protect the environment.
Specific contract conditions are not related to the qualification or evaluation of tenders, they may not have a directly or indirectly discriminate effect in relation to tenderers from other nations or otherwise be disproportionate in relation to what the stated objective is. On the contrary, a specific contract condition may be less invasive that a mandatory requirement since the suppliers are “phased in” to better environmental performance and competition is maintained.
The new procurement directives have established this through a regulation in article 26 (of the classic directive) and article 38 (procurement procedures of entities operating in the water, energy, transport and postal services sectors). These articles state that specific requirements can be stipulated as to how the contract is to be completed and that this may include social and environmental considerations. Regulations on specific contract conditions are listed in chapter 6, section 13 of LOU and chapter 6, section 14 of LUF.