Enforcing Sustainability in Public Procurement through Effective Contract Management – Policy Brief Series

By Ezgi Uysal

Jul 29, 2024 | News, Policy Briefs

1. Continuing the SAPIENS Policy Brief Series with a Focus on Contract Management for SPP

Sustainable public procurement (SPP) under the European legal framework focuses on “what to buy” and “whom (not) to buy from” under the rules regulating “how to buy” which leaves post-award predominantly unregulated. However, whether SPP delivers its potential depends on the contract management practices to be employed by public buyers after the contract is awarded. 

Ezgi Uysal’s policy brief titled “Enforcing Sustainability in Public Procurement through Effective Contract Management” delves into how the lack of SPP-oriented contract management practices post-award not only falls short in delivering the potential of SPP but also is detrimental to the principle of equal treatment leaving the contract susceptible to challenges by other economic operators. This policy brief is mainly based on the author’s research on the use of sustainability clauses in public contracts and the interplay between public procurement law and contract law.

This policy brief is directed to public buyers at all levels incorporating sustainability considerations in their procurement contracts. Additionally, it may also prove helpful for public procurement practitioners.

2. Insights from the Policy Brief 

For SPP to reach its full potential, sustainability criteria in procurement contracts should be reinforced through monitoring (soft enforcement), relational/informal enforcement, and termination. Monitoring ensures transparency throughout contract execution but cannot alone guarantee compliance. When non-compliance occurs, relational enforcement tools should be applied, with termination as a last resort if necessary.

Three-Step Enforcement for SPP 

1.Monitoring (Soft Enforcement): Self-declarations, audits, third-party labels and certifications

2.Relational/Informal Enforcement: Meetings, KPIs, Self-cleaning and Corrective Action Plans, Improvement/Staircase clauses, Financial incentives and disincentives

3.Termination (as last resort): Termination clauses, Potential loss of future contracts

Download the Policy Brief 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

Related Posts

0 Comments