Contract Compliance for SPP: To Monitor or Not to Monitor – Working Paper Series

By Ezgi Uysal

Apr 18, 2024 | News, Research, Working Papers

1.Sustainable Contract Performance

Ezgi’s research examines sustainability clauses in public procurement contracts, focusing on achieving sustainable contract performance. She uncovers the limits of contract law and investigates monitoring and enforcement practices to facilitate the integration of sustainable practices within procurement processes. Her research endeavours to identify legal strategies and tools to ensure that the performance of the contract aligns with the promises made, thereby contributing to broader sustainability goals.

This working paper explores sustainable contract performance. A central aspect of this examination is the imperative for sustainability clauses to be actively followed up by contracting authorities to ensure their realization.

2. Abstract

The principles of procurement underscore compliance with advertised criteria and conditions during the award phase under the Public Sector Directive. The rules on contract modifications, extending these principles to contract performance to a limited extent, warrant a need for compliance not only during the award phase but also during performance. With the recent CJEU case law regarding the application of Article 72 of the Directive, it could be argued contracting authorities should take pre-emptive measures to prevent tacit contract changes. This obligation becomes even more pronounced when green and social conditions are incorporated. Unlike tangible aspects of contract performance, such as delivery timelines or material quality, sustainability considerations may not be immediately observable. In light of these considerations, contracting authorities bear a significant responsibility in ensuring the effective implementation of sustainability commitments throughout the lifecycle of public contracts. While the Public Sector Directive primarily focuses on regulating contract award rather than performance, sustainability clauses necessitate a shift in perspective towards proactive monitoring of contract performance.

Download the paper here

Written by Ezgi Uysal

Ezgi Uysal, a former SAPIENS Early Stage Researcher, defended her thesis titled Enforcing Sustainability in Contract Performance under the Public Sector Directive in December 2024 at the University of Turin, Faculty of Law. Her doctoral research examined how sustainability obligations embedded in public procurement contracts can be effectively enforced during the performance phase, contributing to the broader discourse on sustainable public procurement, contract compliance, and the role of contracting authorities. She is currently a Post-Doctoral Fellow at the Centre for Private Governance (CEPRI), Faculty of Law, University of Copenhagen. Her research is part of the project Purchase Power – Sustainable Public Procurement through Private Law Enforcement (PurpLE), which is financed by the Carlsberg Foundation. Through this project, she continues to explore enforcement mechanisms for sustainability commitments in public contracts from a private law perspective. Her publications include: – “Enforcing Sustainability Clauses in Public Contracts: Third-party Enforcement Caught between the Privity of Contract and Conflicting Interests” in Public Procurement and Contract Law: Exploring Overlaps, Defining Boundaries (Hart, forthcoming, with Katerina Mitkidis) – “To Terminate or Not to Terminate” in Future Perspectives for Directive 2014/24/EU: Reform Proposals (Edward Elgar, forthcoming) – “Mandatory Green Public Procurement Criteria: Comparative Insights from Italian and Norwegian Law to Address European Challenges” Nordic Journal of European Law (forthcoming) – “Concept of being ‘linked to the subject matter of the contract’” in Elgar Concise Encyclopedia of EU Public Procurement Law (Edward Elgar, forthcoming) – “Sustainability Clauses in ‘Public’ Contracts” (2024) European Review of Contract Law 105–127 – Contract Compliance for Sustainable Public Procurement: To Monitor or Not to Monitor, SAPIENS Working Paper (April 2024) – “Bridging the Gap between Corporate Sustainability Due Diligence and EU Public Procurement” (2023) Maastricht Journal of European and Comparative Law 30(5) 554–572 (with Laura Treviño-Lozano) – “The European Green Deal and Public Procurement Law” in Deploying the European Green Deal (Routledge 2023) 177–194 (with Willem A. Janssen) – “The Requirement to Obtain Consent from the Relevant Authorities Constitutes a Contract Performance Condition: Annotation on CJEU Case C-295/20 Sanresa” (2022) European Procurement & Public Private Partnership Law Review (EPPPL) 17(2) 127–130 – “Business and Human Rights: The State as a Buyer” (2021) EPPPL 16(1) 52–64

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