About Bestek Intro [00:00:06] Welcome to Bestek, the public procurement podcast. In this podcast, Dr. Willem Janssen and Dr. Marta Andhov discuss public procurement law issues, their love of food, and academic life. In each episode, Willem, Marta, and their guests search for answers to intriguing public procurement questions. This is Bestek. Let’s dish up public procurement law.

Marta Andhov [00:00:31] Very mysterious, yet again.

Willem Janssen [00:00:35] Very mysterious. But I mean, it is the title of the episode, so it can’t be that mysterious. But good to have you back, Marta.

Marta Andhov [00:00:41] Likewise.

Willem Janssen [00:00:41] It’s so nice to chat again. And today we’ll be continuing a bit of the debate or discussion that we had in the previous episode where we talked about the contents of of the book that Roberto Caranta and I edited; “Mandatory sustainability requirements in in EU Public Procurement Law: Reflections on a Paradigm Change” coming out in October with Hart. We had a team of excellent scholars, young, old, super diverse in all its in, in the many ways that you can be diverse I think nowadays.

Marta Andhov [00:01:16] Cross-disciplinary

Willem Janssen [00:01:18] Cross-disciplinary, cross-disciplinary. And I think also what I liked; at different stages of careers and also to have my co-host present in the book as well. You wrote a chapter which was called Climate Change and Public Procurement. Hence, the the title of today’s episode. So it was “Climate change and public procurement: are we shifting to legal discourse”. And we’re talking a bit about that chapter today. We’re talking about climate change and public procurement and also about this shift about the legal discourse that’s currently happening. And we’re looking at three specific proposals. So we’re looking a bit in your chapter, but we’re also looking at three specific proposals. I think also to give that feeling that you had when you wrote that chapter, a bit of substance. But first off, maybe you can kick off. Tell us a bit about the chapter itself, why you wrote it, who you wrote it with, most importantly. And then we’ll continue talking a bit bit more. And after that, for dessert, we’ll look at, you know, similarly. But then again, from an academic perspective is how we move between different areas, different fields of expertise when we operate as academics. The first off, a kick-off elevator pitch, the chapter.

Marta Andhov [00:02:48] How to sell it the quickest way. No, thanks. Thanks for that lovely, lovely intro. Thanks. Also obviously for the invitation to be part of the book the process. And it’s of been, you know, really, really lovely to work on. It’s true. We had a chance to contribute with chapter two to the book that follows the introduction that we talked about a little bit more in our previous episode. And within this chapter, I had a chance to collaborate with my Ph.D. student, Federica Muscaritoli, who writes her PhD on aspects of climate change and public procurement. The reason why we, you know, sort of pitched that as an idea for the for the chapter and also for that chapter to kind of be a little bit umbrella and feeding into various other chapters is very much connected with you know the climate change mitigation right now. Climate change is a huge challenge for us as a civilisation, as a planet, because we can see very clearly is the climate change became a little bit something that directly or indirectly spread across every single legal discipline a little bit in a similar notion as you have, you know, new technologies, and digitalisation. I find the same, particularly in the aspect of climate change. It is very much, very now the discussion in various academic circles from really competition law. Some of you know my great colleagues, Julian Nowag from the Lund University, that, you know, specialises in competition law. He’s been doing a lot of work about, you know, weaving in sustainability aspects in competition law and really highlighting also the climate change issues. So I find that this is something that from many ways public procurement law also has a role to play and needs to play its role and you can really clearly see how much the new proposals, various new proposals and various acts relate the issues of climate change to public procurement. But also the the element of: How the procurement can be used as a tool and also understanding what are the limitations within that discussion. So, you know, I think it’s the need for adjustment of all the different legal fields, finding the way how this fits. So it’s not something that we, you know, is something that in that chapter in the introduction, we write that procurement law will always play a supportive role. It’s not like we’re going to mitigate the climate change through public procurement law or we cannot go, obviously, as far as saying that climate law right now is sort of the objective of procurement law. But there is undoubtedly an aspect and in line with what you describe also with this shift towards mandatory elements of climate change and emissions particularly need to be addressed also throughout procurement.

Willem Janssen [00:06:09] So a procurement has a role to play, just like environmental law has a role to play, just like public interest, climate litigation has a role to play. It’s many fields. It’s this discussion pops up.

Marta Andhov [00:06:20] I think so. But, you know, I just wanted to emphasise slightly because the examples that you gave, I think that the link is, you know, even closer, right? Like it’s kind of obvious that environmental law needs to do that. But I quite like this notion of pointing out, you know; product liability aspects, constitutional law. We see how much has been going on around constitution law and national constitutions. You know, from all this debate around climate change in the Netherlands or the German case or, you know, Italy adjusting their constitution to include this, a notion right to clean environment and so on for future generations. Absolutely. And the same UN and, you know, kind of acknowledging the right to environment that can sustain future generations, although. So I think what for me is particularly interesting is this commercial level of it, you know, how those legal disciplines that are not very obvious, but how they adjusting and how we can really see that. And that’s everything from contract law, company law, you know, the whole due diligence notions of regulation on the EU level that we see. All of those actually are being right now focussed on adjusting because of the new markets that we need to sort of restructure the markets that we working in and how our particular law field contributes to that and what our our limitations. Right.

Willem Janssen [00:07:50] And I think to add to that, I’m not sure if I’m going to make friends in other disciplines, but they’re not listening anyway. So I also think that public procurement has really paved the way already, right? When we talk about all the possibilities that are there, the scholarships that’s there to discuss how you can integrate sustainability consideration, how you can take the climate into account in a public procurement procedure and what role the law plays. Just to to to reference it, competition law really struggles with with sustainability as an objective for competition law around the globe, but also for EU competition law. And I think that’s where perhaps also other fields of law can learn, or at least, you know, see how public procurement law strikes that balance between environmental consideration, climate considerations, and still upholding fundamental values and principles of law, right? And I’m not saying that they can be copied one on one, but I think when we talk about frontrunners and fields of law that really struggle, I think public procurement law is really in the former category.

Marta Andhov [00:08:56] Well, I think because, you know, there is this public notion of it. Right. And something that I’ve been, you know, researching a little bit of trying, because it is very important for me is that in this area of sustainable procurement or climate and public procurement, there’s a really a lot of debate that is policy based and how we really focus on the legal aspect, because I feel like a lot is being promoted through policies and sometimes from people who are not investigating close enough. They mentioning that certain things that our policies are actually applicable laws when they actually are not. But I think what the aspect that really interests me is how you can and whether there are, you know, those legal legal links when you starting to look on things like. Can you develop a legal link between the notion of governments regulating and then governments at the same time, like dismissing, almost like forgetting that a regulator had and when they purchase, when they argue, yeah, as a commercial party, whether they can disregard this because, you know, as we write with Federica in the chapter, it would be quite hypercritical, but we can discuss that on ethical basis and so on. But is there like also a legal argument saying you cannot do that? Similarly, the public taxpayer’s money, they become sort of public money that are to be spent in accordance with the wishes of the current government. The more green governments and policies we have in place, should that be reflected again, really in the in the the purchasing practices. So I think that that’s also quite interesting element. You know, how you build almost like administrative law argument here, constitutional elements, financial law, like how you build that in the legal argument.

Willem Janssen [00:10:52] Yeah. And then just to tap into what you were saying, that this policy debate has really been spurred by the EU Commission, who’s talked it for a long time about socially responsible public procurement, green public procurement and then in your chapter, you if I can nudge you or tickle you a little bit, you actually, uh, make life a bit more complicated because you introduce a new type of procurement. Can you tell us a bit more about low emission procurement and if that actually makes life more difficult.

Marta Andhov [00:11:26] To figure out why? I think that in a way it does. In a way. I think it also hopefully clarifies because I think where the link is again, with our previous chapter, when we discuss, you know, what is really the value of sectoral focus, when in a way the introducing mandatory elements that it provides certain clarity, provides certain standardisation and etc., etc.. And I think when we started to work on this chapter, we were really trying to figure out because, you know, if you say that you going to write about green public procurement, that actually is a lot of different things exactly. It’s a lot of different things because you can focus on things sectoraly. So, you know, organic, for example, in food context, that will be green procurement, right? Or you can focus really on emissions which are very much aligned with climate, but you can also focus on biodiversity, you know, clean water. It’s so many different aspects of it. And we were trying with Federica to really scope out, out of all of it a very clear element of strategic focus or potentially later on where you really need to target and monitor your requirements. So our line of hypotheses and thought has been that if we follow really the Green Deal and we follow the various sectoral legislation, the majority of them, they touch upon emissions one way or another. So if we would want to establish this minimum focal point, then the focus needs to be on emissions as a certain prioritisation, maybe of other ones. And this one, you know, I fully acknowledge that this is controversial because I remember when we got the feedback from you guys on the first draft, you know, Yes. Someone that you know on human rights, let’s say element and someone whose basic human rights right now are really breached, they kind of would say, well, I don’t care what will happen with Planet in ten years my life is really terrible right now and I fully respect that. You know, it’s I’m just we just try to focus on that and say, okay, if this is prioritised by a specific member state or specific even contracting authorities on an organisational level as a strategy, as a point of priority, this is what we would focus on and that’s why we sort of in the chapter, we point out the various aspects of sustainable public procurement, how green public procurement differs. But then we also point out what is the difference between green public procurement and low emissions, with clearly identifying that with low emissions you focus specifically on emissions. And a really great example that Federica came out with the you know, is this talk about buying bananas by contracting authority in Denmark that, you know, the the notion of buying organic bananas the first questionable…questionable question…the first questionable aspect is if you look at it strictly from sustainability perspective, whether, you know, we in countries like Denmark should be buying bananas in the first place, right? But let’s say, okay, that we’re on to next page, but then we say organic and by the definition and categorisation of green public procurement, this is a green purchase because organic has that element. But all the element of the greening of that procurement that you achieve through label of organic is diminished by……. Sorry, I’m not in my mind at the second. I’m trying to pull it together.

Willem Janssen [00:15:07] You’re doing a great job.

Marta Andhov [00:15:10] But yeah, this negative environmental externalities that transport provide us like this is not definitely then climate friendly right like the climate neutral purchase. So I think this is we just try to clearly point out at the very beginning what this chapter will be about and what it will not be about in the notions of, you know, being clear and precise.

Willem Janssen [00:15:34] And I think that’s really because, of course, I was playing devil’s advocate when you when I said when I introduced this part of your chapter because I think it rightly taps into discussions about can procurement be fixed for everything and can each procedure or each procurement fix all the problems in the world? I’m being a bit dramatic, but like some procurements, it seems that some are more suitable to just tackle emissions. And then particularly in the climate change context, that makes a lot of sense to do that then.

Marta Andhov [00:16:05] Well, absolutely. Like if we’re talking, you know, transport, right. It would be really bizarre if we thinking sustainable procurement and you do anything with public transport and you would not think about the emissions. Yeah.

Willem Janssen [00:16:16] Absolutely. And I think that’s also like what underlies a lot of the discussions here that we’re having about climate change and public procurement. It’s this question of what do we include? Emissions make a lot of sense, but also what does the law prescribe when we talk about mandatory requirements? At the moment, there’s not a lot that’s being prescribed. We have the Clean Vehicles directive talking about emissions, but. What I liked about your chapter is when you say, are we shifting to legal discourse? Is the answer yes or no?

Marta Andhov [00:16:53] Yeah, I think that we are shifting the discourse because what we are seeing is that we have a more and more regulation by targets, which for us public procurement specialists – this is not something that we really used to, so we’re not entirely sure how to go about it. And also if you ask, you know, practitioner, one of the things that we looked at is, you know, can you derived any sort of guidelines or obligation from EU climate law, from, you know, national climate acts, what happens there? To what extent me as an adviser to contracting authority can say, well, I need to do this and this and this at the current stage is really uncertain. And there are many different questions of, you know, how you do it, because is this how we disperse various targets and to what level of granularity we go? And it’s again, are we saying, for example, each contracting authority in every this type of sectoral procurement need to consider lowering emission, let’s say by, I don’t know, 10% in a scale of three years or how are we doing that? Because that also is connected with the discretion of contracting authorities, because it also can be, you know, this approach that you have rather assign the specific target and that needs to be reached on organisational level. So you say, you know, Municipality of Utrecht, Municipality of Copenhagen throughout all your procurement, you have this target. But how you disperse and how you sort of shifted, it’s left to you. And the positive aspect of that is that that allows it contracting authority to work with particular market maturity and the costs related to that maturity across different procurements. So, you know, in a certain aspect it might be already relatively cheap to get, you know, low emission solutions. In others, it might be that you only have one supplier or two supplier and is very expensive. So you have still the possibility of shifting it and still reaching that target. But we don’t have yet very clear guidelines through it. The interesting things that we can see that some of our colleagues already drafted some preliminary research on that is that France, Spain and Portugal, they starting to write into they really national procurement laws, specific provisions connected to climate change national laws.

Willem Janssen [00:19:32] And I think that when we talk about shifting the legal discourse, we particularly in Europe, were very focussed on procedural rules that are aimed to create an internal market for public contracts. Now, we’re also faced with different types of pieces of legislation, targets. Right. You rightly point to, if I can summarise it, questions of practical implementation enforcement before the courts. Like can you take is this is are these targets going to be the next Urgenda case in which the target hasn’t been met? And the next question is it also violates some type of human right. And in connection to that, you could take the Dutch government to court again.

Marta Andhov [00:20:13] Right. And also, like, you know, a whole question about legal standing can right now, also like a competitor come and say, well, you didn’t address, you know, this specific target in your contract performance or can we sue contracting out sorry right now saying that they didn’t to enough you know on level basis that they didn’t meet that target yet. So I think targets in general are just really interesting because why they have been present in other areas of the law for us in procurement is something that is quite new to figuring out how to enforce it, what to do with them.

Willem Janssen [00:20:51] Yeah, so I think that’s one tick in the box of we are indeed shifting the legal discourse, right? When we look at the everyday life as a public procurement professional, broadly speaking, they look at the procurement directives, most of them. Then more specifically look at the classic directive. And I think the second point that you rightly make in the chapter is that. With lots of other pieces of legislation, regulations, directives coming out of Europe, mostly out of the Green Deal. It means that we’re also shifting the legal discourse there. It means that, you know, as public procurement lawyers, if I can baldly stated, perhaps need to become some sort of environmental law lawyer.

Marta Andhov [00:21:35] At least you need to become aware of this various different legislations. Right. And then it speaks very much and connects again to your intro chapter and your general conclusions for the book. We have this typology of different solutions, and each one of them also are reflected in various different provisions when it comes to emissions.

Willem Janssen [00:21:59] Yeah, for sure. So when we come back to the climate discussion, what you do really nicely with Federica and the chapter is you talk, you give a broad overview of different initiatives. We won’t have enough time to discuss all of them, which is why what we’re doing today is we’re looking at three a specific ones that also have a clear link to the climate and that are very recent.

Marta Andhov [00:22:21] Yeah, they’re connected to the chapter, but they are not in itself elaborate in the chapter. So right now we’re going a little bit beyond what the Chapter is right?

Willem Janssen [00:22:29] And that’s partially because they’re super recent. So that’s why these are initial reflections. We’re talking about batteries, which which has been adopted. And then two proposals, one on net zero and one on deforestation. And what we would like to do is, I think, showcase a little bit we can be exhaustive, but I think what we’d like to do is showcase a bit about the different dimensions that exist related to these specific criteria. So how you would have to look at this is we have a regulation and there’s one provision, say, about public procurement, and we’re seeing that that that’s a bit of a trend in all these pieces of environmental legislation. You see one provision or two popping up a bit in the recitals about public procurement outside of the scope of the more traditional public procurement directives.

Marta Andhov [00:23:16] And it’s sort of a bit like, Hello, we’re here, but it’s not really exhaustive or guiding enough for you to kind of know what to do with it. Exactly, which is a bit tricky, right? So yeah, undoubtedly, to start us with with the proposal for the regulation on Net zero Industry Act. So this act ultimately is focusing on scaling up the manufacturing of the clean technologies in the EU. Right?

Willem Janssen [00:23:43] So we’re talking wind turbines, batteries as well, solar PV, water pumps, heat pumps.

Marta Andhov [00:23:50] Yes. And what is interesting is that in the residual and in the proposed Article 19, there is this a reference to sustainable and resilience contribution and that already kind of. For even someone that kind of knows a lot about sustainable procurement, that already raises a question. Resilience. So that’s another new thing… What are we doing here.

Willem Janssen [00:24:17] Yeah, I mean, definitely it’s it’s interesting and I think it closely links to much of the legislation that Europe seems to be greening, but there also seems to be a strong focus on security of the supply, making sure that we have enough supply in Europe that we don’t have to rely on third countries such as China or Russia or any of the BRICS countries that might have competing interests to to Europe.

Marta Andhov [00:24:43] Yeah, instead of focusing. The post COVID, I think also indirectly in context of, you know, the conflict in Ukraine, this whole notion of we need to be more self-sufficient when it comes to energy, right?

Willem Janssen [00:24:56] Strategic autonomy.

Marta Andhov [00:24:57] Yeah, absolutely. So, Willem, can you guide us then through so what specifically within that Net zero Industry Act relates to procurement?

Willem Janssen [00:25:08] Yes. So we have an Article 19, as you mentioned, which is headed “a sustainability and resilience contribution in public procurement procedures.” and it basically it’s got some mandatory requirements. Right. And whether they’re super mandatory or not, we’ll talk about that in a second, but basically refers to contracting authorities and contracting entities, and it includes that in a public procurement procedure when using the most economically advantageous tender as an award criteria in these entities and I quote now; “shall include the best price quality ratio comprising at least the sustainability and resilience contribution of the tender…” And the sentence goes on “but at least that should be included.” Right. It doesn’t say much about the quantity. And then the article goes on to say that “the tender sustainability and resilience contribution shall be based on the following cumulative criteria, which shall be objective, transparent and non-discriminatory, environmental sustainability, going beyond the minimum requirements and applicable legislation, – that’s maybe a first one that we can tackle in a bit – Where an innovative solution needs to be developed. The impact and the quality of the implementation plan, including risk management, management measures and see where applicable the tenders contribution to the energy system integration.” And maybe for this podcast only, look at the first. But I think what do you think when you hear environmental sustainability going beyond what’s the first red flag that pops up?

Marta Andhov [00:26:45] How much?

Willem Janssen [00:26:46] Yes, exactly.

Marta Andhov [00:26:47] How much beyond is okay? Yeah. Because it’s, it’s a very, you know, but I guess it’s, it’s commonality across various sustainability initiatives. Right. So, um, what I would prefer probably is it’s, you know, sort of establish some type of minimum requirement and then somehow maybe, you know, obliging or indicating that if you want to go beyond and you should go beyond, you should put it in award criteria, right? So you kind of scale it up. Right. But the way how it’s worded, it’s, you know, the questions automatically, I think all practitioners will ask, okay, so how much more.

Willem Janssen [00:27:26] What does this exactly?

Marta Andhov [00:27:27] Yeah. What does it exactly mean, you know?

Willem Janssen [00:27:29] Yeah. And I think one that’s clear and I forgot the D section just then is that there are also there’s a requirement or at least that’s being proposed right. To to, to include more than 65% of the supply for which that nets net zero technology originates from within the European Union. Right. That’s a bit clearer. And I think for all of them, what’s interesting is that this provision also proposes that the that contribution of sustainability and resilience is given a weight between 15 and 30% of the award criteria.

Marta Andhov [00:28:02] Yeah, that’s that’s a bit more specific, at least to use somewhere, right. But I think what that D element also is quite interesting from a broader perspective is the debate of at least in context of the Net zero Industry Act for the reason of stability, security, you know, resilience readiness that is used to give a certain preferential treatment, a requirement for European companies, European manufacturing. Right. Which I think that it speaks volumes on the general thing, we haven’t been at all in context of procurement giving preferential treatment to our own European. And I think this is this this building not, you know, the Dutch to Danish leaders in sectors, but right now, I think that slowly we are moving that direction, that it will be preference for European manufacturing, European companies and so on. So for us, that’s an interesting aspect to see that right now.

Willem Janssen [00:29:07] I think that’s really interesting in this proposal as as limited as it may be, going beyond at least the generally red flags. Right. There’s also a bit more specification there. But I think the security of supply, the strategic and autonomy is really interesting here. And I think just one final aspect, there’s also a way out still, or at least that’s being proposed in Section four. And I think it’s important to just mention that.

Marta Andhov [00:29:31] Which is you kind of got excited, a bit confused and there’s something happening, something happening, and then you go into this provision paragraph four, and once you have them.

Willem Janssen [00:29:41] It basically it allows this contracting authority or contracting entity that is obliged to apply those mandatory criteria to not apply them. So it’s the way out if that would result and these are my own words, a bit paraphrasing in disproportionate costs or technical characteristics different from those of the existing equipment resulting in incompatibility, technical difficulties in operation or maintenance right abroad, because it doesn’t work. If we have to buy this like this or it costs too much basically. And then cost is a cost difference is above 10%, maybe presumed to be a disproportionate. And my first got feeling is is this will mean that it becomes an opt out for basically any procurement or at this there’s always an option to say well 10% it’s not it’s a hefty increase but also not insane. So basically means that this provision, or at least at first sight will is can easily be disregarded for by contracting authorities and entities that do not want to apply it.

Marta Andhov [00:30:36] Yeah, I’m very much agree with you. What I like is the 10%. I like that the sort of because, you know, before you go to that element, you’re saying, well.

Willem Janssen [00:30:46] For those that didn’t know yet. Marta likes legal certainty.

Marta Andhov [00:30:48] I do love legal certainty, absolutely. But, you know, my point being is that everything could be disproportionate. I think, you know, it’s it’s very scalable. It’s different. Member states would interpret it differently. Right. So I like that there is this 10%, but I very much agree with you that it’s a big shame because I think that that provision might be I don’t know whether abuse is the right word, but yeah, it’s very much a way out for restaurants.

Willem Janssen [00:31:14] And I think that way out, I mean, it’s sort of in the proposal phase, right? So it could could change still. We still have 2 to go.

Marta Andhov [00:31:22] We need to get that first. Let’s go to batteries.

Willem Janssen [00:31:26] Okay. So Batteries has been adopted on the 28th of June, a regulation about, uh, concerning batteries and waste batteries. And this, this regulation aims to prevent and reduce the adverse impact of batteries in the environment and to ensure a safe and sustainable battery value chain. And in Article 85 of this finalised regulation, we now see also a provision again about green public procurement. And it it aims to or at least obliges contracting authorities and entities to take into account the environmental impact of those batteries over their lifecycle, with a view to ensuring that such impacts are kept to a minimum. So take into account, but also ensuring. In that first introduction, and then the provision moves on to being a bit more more specific. Right. It it states that, you know, it needs to include award criteria and technical specification based on some of the provisions in in this regulation relating to carbon footprint, recycled content and performance durability. So it is a bit more specific. But then again, and this is the Cliff-hanger and then I’ll leave the floor to you to shoot at the moving target that I well, actually this is a fixed targets not moving animal.

Marta Andhov [00:32:51] Yeah. No, I think. I think. I think that what is also interesting and what it ties with the beginning of our episodes, this is a sectoral of legislation that again very clearly points out to carbon footprint, right? So it kind of is a good example. I think ultimately what what we point out. I think that this is, again, a bit more specific, right, when it comes to the award criteria and the technical specification, which is preferable, but it still leaves a lot of questions unanswered on how you are to structure it, what will work and what will not. Do you need to have that in both? Most presumably not just in one of them, but we have it already approved. So I think this is also a good element to highlight for again, our practitioners listeners to this already being approved. So that’s coming to be enforceable.

Willem Janssen [00:33:46] Yeah, for sure. And I think what’s interesting about this discussion about it does say technical specifications and award criteria. So the question is, you know, is there still a bit of picking or choosing there? And what’s interesting is that it still needs to be fleshed out in delegated acts by the by the European Commission. And I think that’s a point worth highlighting. So that’s a lot. The fact that there’s delegated acts assigned to the Commission about technical aspects is not uncommon in environmental law. The Commission, based on this regulation, can then adopt the delegated acts further fleshing out these these award criteria for for public procurement procedures. In an article that I wrote for for a book edited by amongst others [00:34:34]are done on the brink. [0.6s] I do question this approach because I wonder if this is the right way forward, right. If we really talk about this fundamental change, right, this this paradigm shifts towards mandatory requirements. I think you can at least question if it should be left up to the Commission to hash it out. To say the commission, you know, you can just and I’m being a bit too negative perhaps, but, you know, I think there should be legislative scrutiny in at least in a trialogue procedure. Because I do think this is an essential aspect of EU law and delegated acts can only be used for non-essential aspects of the law. So I think what’s interesting for in the time to come when it comes to batteries is how this will actually flesh out, because we simply don’t know yet. We have a contours that are sketched by Article 85, but what’s really happening in delegated acts, we will find out very soon. It’ll have something to do with technical specifications and award criteria and the lifecycle. But other than that, not yet.

Marta Andhov [00:35:29] Yeah. And of course the question is also how much some type of dialogue with specialists and stakeholders the Commission is having right now. So is really the proposal that is given is a proposal that can be really implemented across all the European Member States, right? So yeah, I think then you spot on. And with that I think we can move to the last one, which is the proposal for the regulation on the making available on the union market and export from the union of certain commodities and products associated with deforestation and forest degradation. So this one is quite interesting because it touches upon various commodities that are identified. So it ultimately this proposal lays down rules regarding the placing and making available on the union market, as well as the export of relevant products that are all listed in Annexe one to this regulation. And just to give our listeners a bit of a taste of what type of commodities we are talking about here, we’re talking about cattle, cocoa, coffee or oil, palm rubber, soy wood with the view… the view, the purpose of that regulation being to minimise the contribution of the European Union to deforestation and forest degradation worldwide. So this is in itself quite interesting. We looking quite extraterritorial here and therefore ultimately to contribute to reduction of global deforestation. And tying back to our beginning of of of the episode in our chapter with Federica reducing the union’s contribution to greenhouse gas emissions and global biodiversity loss.

Willem Janssen [00:37:22] Yeah, So again, super relevant for climate change. Absolutely. And I think when we look at the spectrum because I think the picture that’s emerging from even discussing these three bits of legislation is that everyone tackles mandatory requirements in a very different way. And I think that’s also a general gist of fragmentation that came up out of the out of the book and with the other chapters, because what happens here, What’s the penalty for not abiding by the rules in this.

Marta Andhov [00:37:49] Yeah, and I.

Willem Janssen [00:37:50] The regulation and.

Marta Andhov [00:37:51] I just want to point out before I describe the penalty itself, that there is also quite similar approach to using kind of public procurement as part of penalties in another piece of legislation that is proposed. And that’s the proposal for Green Claims Directive and it’s Article 17, paragraph three. So what we then refer to as, you know, directive for anti kind of greenwashing and both that. Green Claims Directive proposal and the Deforestation Regulation proposal have a section on penalties. And one is interesting that in the section of penalties at some point in deforestation, that is in Article 25, paragraph two, that reflects that for the penalties that are provided in paragraph one, for them to be effective, proportionate and dissuasive, the penalties should include. And then in para D, in point three, there is a reference to public procurement and how the wording stands and I’m pretty certain that in both the acts that I just mentioned, they worded very similarly temporary exclusion for maximum period of 12 months from public procurement process and from access to public funding, including tendering procedures, grants and concessions.

Willem Janssen [00:39:18] Yeah, it it was a new, I think, element added to to this whole debate about mandatory requirements. I think also very nicely showcased by a blog that you wrote with Michal Kania on the Bestek blog. So have a look if you’d like to read a bit more about that other piece of legislation. We said we’d only do two three, so we can’t do four right now, but you squeeze in another one. But I think what’s there’s a lot to say and there’s one that I would like to say about this one that you just read out loud is as this fits within the system of exclusion grounds read, we have a list in the public procurement directives.

Marta Andhov [00:39:54] Well, absolutely. And that’s a little bit where we elaborate with Michal in the in the Bestek blog post talking about, you know, growing catalogue of exclusions. But actually that castle grows outside of the directive and it leaves a lot of questions unanswered because it’s this one provision, but nowhere else there’s any other information is that additional ground that is of a facultative nature that leaves the discretion for the contracting authorities to choose whether it should be apply or not. Is it mandatory? Should it settle, so to speak, follow the requirements and terms and conditions that are associated with all the other exclusion grounds that we have in the directive. Therefore, there needs to be a final court decision in regards to those things or not.

Willem Janssen [00:40:46] Yeah, self-cleaning.

Marta Andhov [00:40:47] Self-cleaning exactly.

Willem Janssen [00:40:48] And I think, you know, when you when you look at the provision itself, the member states shall lay down rules on penalties. The penalties provided for shall be effective, proportionate and dissuasive, and they shall include. So at least there’s some sort of strong call to action that there needs to be something that that needs to happen. But how that fits within all of the discourse, at least it’s an interesting addition to the to the palette from an academic perspective.

Marta Andhov [00:41:12] It absolutely is. But I think that it leaves more questions than it provides answers, because the you know, exactly the wording is it’s tricky. And I think particularly the lack of broader contextualisation, what consequences of that are associated with it will leave a lot of people questioning because also I think what is important here when it comes to this penalties, you know, of breaches in context of something like deforestation, For me, what I always am interested in, okay, how you are to be proven that you actually did something wrong and if that ultimately would very often in areas of and I’m putting everything in one bucket right now of the sustainable consideration is based is very often that at some point you need to provide probably Self-declaration Yeah and if it’s a self-declaration, you know, it’s like what is the really going back to my testing, my appreciation of legal certainty, What would you can really do with that and how you who is investigating that and so on, so forth. So I think that all the people that are quite sceptical towards, you know, sustainability and public procurement, this gives them a brilliant ammunition to pointing out that we cannot just spread public procurement everywhere and expect that all of it will be addressed in public procurement. It needs to be a little bit more thought out, I think.

Willem Janssen [00:42:33] Yeah, for sure. I think we’ll leave it at that. There’s much more to say about this provision and the other three, and there’s many more to discuss, but perhaps we can do on another occasion. Just to wrap it up, we talked a bit about your chapter on climate change that you wrote with with Federica about public procurement and are we shifting the legal discourse. We talked about, you know, this new assessment of targets, but also a discussion about specific provisions that went a bit beyond the chapter but are super relevant and new and novel delegated acts, penalties, but also just simple setting of norms. Right. And different variations of pop up I think food for thought for the future hopefully but also. Definitely not the end of the discussion. I’m sure more will follow. But when we talk about shifting the legal discourse, we’re moving not just to targets but also to other pieces of environmental legislation. There’s a shift there, but I think and I’m moving slowly towards dessert. I think that is also something that we do a lot in our in our academic career, right? We reinvent ourselves. We do new things, but that can also sometimes feel a bit uncomfortable, right? I still vividly remember moving away from in-house and public public. I’ll never forget my first love in academia, my Ph.D., Are you all right Marta? My first love, but definitely not married yet to a subject. I like sustainability now, maybe in a couple of years it’s something else, but I think that can come with certain challenges, right? It can make you feel like you’re perhaps not the expert there, or it can make you feel enthused or excited or, you know, all those sorts of things. So that’s why I thought it’d be interesting to talk about that today. How does that make you feel.

Marta Andhov [00:44:21] A little bit more alive and awake? Undoubtedly. I think it’s also very interesting in context of the work that we’ve been both collaborating on over again last month. And I have two or three thoughts that that that come to my mind. I think first is, you know, one aspect is really of moving within the area of your expertise to different themes. So you know, you’re still in procurement and as you said, you kind of did in-house, then you do sustainability. And so I think that that is still somehow manageable and within within the boundaries that we feel comfortable I think – one way or another – I think when this becomes really something that you feel like you might be flying by the edge of your pants (she meant flying by the seat of your pants). I believe I paraphrase the English phrase.

Willem Janssen [00:45:13] It is going for far…

Marta Andhov [00:45:14] Too long… Is when you particularly, let’s take the sustainability aspect, when you suddenly starting to be asked and commented on and you feel like you need to, for example, really become a specialist in like climate studies or, you know, quantification of emission or, you know, we the like risk assessment, supply chain planning forecasting, you know, suppliers diversification, like things that are not really coming of procurement law, they’re not even coming from law. But you need to understand those other disciplines that are not legal to be able in an informative way to look on some of the provisions. And then that is similar or on level of difficulty as well to branch to totally different and maybe sometimes even opposite area of law. So something that we collaborating on right now, it’s a book project that we merging really perspectives of public procurement law, public contract law with private commercial contract law. So, you know, again, sort of language wise, we’re using very different language. We kind of want to talk about things that we sort of feel like we know and we understand but are very different. And I think that we pride ourselves in our academic careers, you know, getting somewhere over many years and be specialists in and you usually come across I find two academic types; 1) to get excited – Let me try and let me see now and 2) one that feel quite, you know, I don’t know if scared is a good word.

Willem Janssen [00:47:01] Uncomfortable.

Marta Andhov [00:47:02] Yeah, you know, a bit anxious, I guess that before they can make that kind of step or jump or leap, they need a lot of time to get acquainted with whatever the other thing is.

Willem Janssen [00:47:13] Yeah, it always reminds me a bit of I worked at two law firms briefly, one when I was studying and one when I worked in Australia is like this this competition that sometimes between partners in the in the firm. Right. You don’t want to give any work or clients to other partners. So you know, it’s not really my field of law, but I’ll scoop it up because otherwise I might lose the client. And I can also do that. I’m the best lawyer on the planet, right?

Marta Andhov [00:47:35] Comprehensive service.

Willem Janssen [00:47:37] Comprehensive full service legs on the table, open to all policy type of law firm, that type of thing. And I think there’s there’s a risk there. Right. But I find it’s I don’t have a conclusive answer here, but I think there’s we’re always balancing between being inspired. Also to further influence what you previously researched. Exploring new avenues, New ways, Right. Really in-depth research because that’s also where new stuff comes from. And that feeling that you describe very rightly is that uncomfortable feeling of am I really an expert there or am I there yet? Can I give a presentation on this already, or should I have Should I know all the angles? I’ve read all the books, all the articles, you know, before I can do that.

Marta Andhov [00:48:19] And I think also if you look on that, because we tend to in this part of the podcast always, you know, reflect a bit on career paths in academia, is that you might find yourself in two challenging scenarios from different reason, and that is or you can become, you know, a specialist very quickly because procurement law ultimately is a niche subject largely. So yeah, you can very quickly and for many years be in procurement law, but the later on you are in academia, you being expected to kind of contribute to one of these big, you know, courses, big themes you need to go outside. So sort of boxing yourself too quickly might be a bit of a challenge. On other hand side, if you kind of dub in a bit of everything at the same time you run into the challenge of saying; “what they are experts in?”, right? So it’s fine balance of finding the right way. But I think this is. Wouldn’t you agree, though, this is also the only way to kind of continue to stay curious, learn more things, be able to look at things from, you know, different fresh perspective.

Willem Janssen [00:49:29] Yeah. And I think it’s I fully agree with you. I think honesty is simply the key to mitigating that balance. Right. And just saying, okay, well, I’ve started researching this. It will take me some time before I can have some type of opinion or expertise on it, before I can weigh up all the aspects and angles that are there. And I think then, of course, because otherwise, you know, we’d be stuck doing the same thing for the rest of our academic career. And I think also research wouldn’t flourish or advance. Right. But there’s an inherent tension there and it can feel uncomfortable, I think. But in general, it leaves me very excited always to think about, ooh, I’m doing something very different. Same When we talked about your chapter in the book, it’s a bit uncomfortable, not not the chapter itself, but the shifting the legal discourse. Right? It’s kind of like I felt like I was reading way more environmental law books than procurement books when I when I was editing it. And I’m sure you had the same when you wrote that chapter.

Marta Andhov [00:50:23] Oh, absolutely. When you needed to really dive into, you know, what environmental law is and what this targets, how they just it’s, it’s things that, you know, if you pick up any procurement law article even if not on your kind of topics something different that you never really, you know, spend much time on research, you feel connection, you see where the logic is. But this other fields is definitely something that challenges that. But I also think that growth happens when you get a bit uncomfortable. So I think it’s it’s a positive thing.

Willem Janssen [00:50:57] For feeling uncomfortable.

Marta Andhov [00:50:58] Yeah, let’s embrace it.

Willem Janssen [00:51:00] Thank you so much. Your metaphor for highlighting some aspects of your your chapter that you wrote with Federica. I really hope that people will take notice of it. Of course. And we look forward to your comments as always, we’ll put the link to the chapter in the in the bio of the of this episode and we’ll round it up from here.

About Bestek Outro [00:51:26] This was Bestek, the public procurement podcast. Do you want to contribute to today’s discussion? Then share your thoughts on LinkedIn or Twitter. Do you have an idea for a future episode? Write to us at www.bestekpodcast.com

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