Sustainability and resilience contribution in public procurement procedures
1. For public procurement procedures falling within the scope of Directive 2014/23/EU, 2014/24/EU or 2014/25/EU, where contracts have net-zero technologies listed in Article 4(1), points (a) to (k), of this Regulation as part of their subject matter, or in the case of works contracts and works concessions including said technology, contracting authorities and contracting entities shall apply minimum mandatory requirements regarding environmental sustainability established in the implementing act referred to in paragraph 5 of this Article.
2. Paragraph 1 shall not preclude contracting authorities or contracting entities from using additional minimum requirements or award criteria in relation to environmental sustainability.
3. Notwithstanding paragraph 1, contracting authorities and contracting entities shall apply at least one of the following conditions, requirements or contractual obligations for the works contracts and works concessions referred to in paragraph 1:
(a)
a special condition that relates to social or employment-related considerations that takes the form of a contract performance clause within the meaning of Article 70 of Directive 2014/24/EU and of Article 87 of Directive 2014/25/EU and of the general principles of Directive 2014/23/EU;
(b)
a requirement to demonstrate compliance with applicable cybersecurity requirements provided for in a cyber resilience regulation, including, where appropriate and where available, through a relevant European cybersecurity certification scheme;
(c)
a specific contractual obligation to deliver the component of the contract relating to net-zero technologies listed in Article 4(1), points (a) to (k) on time, that may give rise to an obligation to pay an appropriate charge if this obligation is not fulfilled, and that goes beyond the requirements provided for in applicable national legislation, if such legislation exists.
4. The minimum mandatory requirements referred to in paragraph 1, where applicable, shall take the form, where appropriate, of:
(a)
technical specifications or requirements within the meaning of Article 36 of Directive 2014/23/EU, of Article 42 of Directive 2014/24/EU and of Article 60 of Directive 2014/25/EU; or
(b)
contract performance clauses within the meaning of Article 70 of Directive 2014/24/EU and of Article 87 of Directive 2014/25/EU and of the general principles of Directive 2014/23/EU.
5. By 30 March 2025, the Commission shall adopt an implementing act specifying minimum requirements on environmental sustainability for the public procurement procedures referred to in paragraph 1.
When adopting that implementing act, the Commission shall consider at least the following elements:
(a)
the market situation at Union level of the relevant technologies;
(b)
provisions regarding environmental sustainability set out in other Union legislative and non-legislative acts applicable to public procurement procedures covered by the obligation set out in paragraph 1;
(c)
the Union’s international commitments, including the GPA and other international agreements of which the Union is bound.
That implementing act shall be adopted in accordance with the examination procedure referred to in Article 45(2).
6. A Member State shall not discriminate against, or subject to unjustified different treatment, a provider or net-zero products from another Member State.
7. The tender’s resilience contribution shall be taken into account in the case of public procurement procedures falling within the scope of Directives 2014/23/EU, 2014/24/EU or 2014/25/EU where such contracts have net-zero technologies listed in Article 4(1), points (a) to (k), of this Regulation as part of their subject matter, or in the case of the works contracts and works concessions referred to in paragraph 1, including said technology, and in the case of contracts awarded on the basis of a framework agreement where the estimated value of those agreements is equal to or above the values set out in Article 8 of Directive 2014/23/EU, Article 4 of Directive 2014/24/EU and Article 15 of Directive 2014/25/EU, in accordance with this paragraph.
If the Commission, at the time of the call for competition for a public procurement procedure as referred to in paragraph 1 of this Article, or commencement of such a procedure, has determined in accordance with Article 29(2) that the proportion of a specific net-zero technology or its main specific components originating in a third country accounts for more than 50 % of the supply of that specific net-zero technology or its main specific components within the Union, or if the Commission has determined in accordance with Article 29(2) that the proportion of supply within the Union of a specific net-zero technology or its main specific components originating in a third country has increased by at least 10 percentage points on average for two consecutive years and reaches at least 40 % of the supply within the Union, contracting authorities and contracting entities shall include the following conditions for the public procurement procedures referred to in paragraph 1 of this Article:
(a)
an obligation for the duration of the contract not to supply more than 50 % of the value of the specific net-zero technology referred to in this paragraph from each individual third country as determined by the Commission;
(b)
an obligation for the duration of the contract that no more than 50 % of the value of the main specific components of the specific net-zero technology referred to in this paragraph is supplied or provided directly by the successful tenderer or by a subcontractor from each individual third country as determined by the Commission;
(c)
an obligation to provide contracting authorities and contracting entities, upon their request, adequate evidence relating to point (a) or (b), at the latest upon completion of the execution of the contract;
(d)
an obligation to pay a proportionate charge, in the event of non-observance of the conditions referred in point (a) or (b), of at least 10 % of the value of the specific net-zero technologies of the contract referred to in this paragraph.
8. For contracts covered by the Union’s Appendix I to the GPA as well as by other relevant international agreements by which the Union is bound, contracting authorities and contracting entities shall not apply the requirements of points (a) to (d) of the second subparagraph of paragraph 7, where the specific net-zero technology or its main specific components originates from sources of supply that are signatories to those agreements.
9. Contracting authorities and contracting entities may, on an exceptional basis, decide not to apply paragraphs 1 to 4, where:
(a)
the required net-zero technology can only be supplied by a specific economic operator and no reasonable alternative or substitute exists and the absence of competition is not the result of an artificial narrowing down of the parameters of the public procurement procedure;
(b)
no suitable tenders or no suitable requests to participate have been submitted in response to a similar former public procurement procedure launched by the same contracting authority or contracting entity in the two years immediately before the commencement of the planned new procurement procedure;
(c)
their application would oblige that contracting authority or contracting entity to acquire equipment having disproportionate costs or would result in technical incompatibility in operation and maintenance.
10. Estimated cost differences above 20 %, based on objective and transparent data, may be presumed by contracting authorities and contracting entities to be disproportionate.
11. Where the application of the resilience contribution pursuant to paragraph 7 of this Article has led to a situation where no suitable tenders or no suitable requests to participate have been submitted in response to a public procurement procedure, the contracting authorities or contracting entities may, on an exceptional basis:
(a)
decide to use the negotiated procedure without prior publication pursuant to Article 32(2), point (a), of Directive 2014/24/EU, Article 50, point (a), of Directive 2014/25/EU or Article 31(5) of Directive 2014/23/EU; or
(b)
decide not to apply paragraph 7 of this Article in a specific subsequent public procurement procedure that aims to address the same needs as those which led to the commencement of the initial procedure referred to in this paragraph.
12. This Article shall be without prejudice to:
(a)
the possibility of using additional non price criteria;
(b)
the possibility of excluding abnormally low tenders under Article 69 of Directive 2014/24/EU and Article 84 of Directive 2014/25/EU;
(c)
Articles 107 and 108 TFEU, in the case of uncompetitive public procurement procedures.
Auctions to deploy renewable energy sources
1. For the technologies listed in Article 4(1), points (a) to (j) that are renewable energy technologies, Member States shall, when designing auctions for the deployment of energy from renewable sources, include:
(a)
pre-qualification criteria related to:
(i)
responsible business conduct;
(ii)
cyber security and data security; and
(iii)
ability to deliver the project fully and on time;
(b)
pre-qualification criteria or award criteria to assess the auction’s sustainability and resilience contribution as referred to in paragraph 2.
This paragraph is without prejudice to Article 4 of Directive (EU) 2018/2001 and Articles 107 and 108 TFEU, and to the Union’s international obligations.
2. The auctions’ sustainability and resilience contribution shall be based on the criteria laid down in this paragraph. Those criteria shall be objective, transparent and non-discriminatory.
Auctions shall contribute to resilience, taking into account the proportion of the net-zero technology or its main specific components that originates from a third country accounting for more than 50 % of the supply of that specific net-zero technology or its main specific components within the Union.
For the purposes of the second subparagraph of this paragraph, the country of origin shall be determined in accordance with Regulation (EU) No 952/2013 of the European Parliament and of the Council ( 56 ) .
Auctions shall also contribute to at least one of the following:
(a)
environmental sustainability going beyond the minimum requirements in applicable law;
(b)
innovation by providing entirely new solutions or improving comparable state-of-the-art solutions;
(c)
the energy system integration.
This paragraph shall not preclude Member States from using additional non-price criteria beyond those listed in this paragraph.
3. By 30 March 2025, the Commission shall adopt an implementing act further specifying the pre-qualification and award criteria referred to in paragraph 1.
That implementing act shall be adopted in accordance with the examination procedure referred to in Article 45(2).
4. Member States shall give to each of the criteria to assess the auction’s sustainability and resilience contribution, when applied as award criteria, a minimum weight of 5 % and a combined weight of between 15 % and 30 % of the award criteria. This is without prejudice to the possibility to give a higher weighting to the criteria referred to in the fourth subparagraph of paragraph 2, in accordance with any limit for non-price criteria set under State aid rules.
5. Member States shall not be obliged to apply the considerations relating to the pre-qualification and award criteria laid down in paragraph 1 where, by applying those criteria, they would incur disproportionate costs. Estimated cost differences above 15 % per auction, based on objective and verifiable data, may be presumed by Member States to be disproportionate.
6. Member States shall, where appropriate, take measures to maximise the execution rate of projects through appropriate incentives, for example, by applying price indexation. Member States may assess the effects of negative bidding on the speed and scale of deployment.
7. Paragraphs 1 to 5 shall apply to at least 30 % of the volume auctioned per year per Member State or alternatively to at least 6 Gigawatt per year per Member State.
8. By 31 December 2027 and every two years thereafter, the Commission shall carry out a comprehensive assessment of the application of the resilience and sustainability criteria for auctions for the deployment of energy from renewable sources and their effect on the accelerated deployment of renewable energy technologies. In particular, the Commission shall assess the impact of the resilience and sustainability criteria on:
(a)
the development of the Union’s annual manufacturing of renewable energy technologies;
(b)
the deployment of energy from renewable sources, including their financial impact and their impact on the speed of deployment, while also taking into account the workability, including the administrative burden, and clarity of the system for project developers and national administration, on the basis of available data.
As part of that assessment, the Commission shall consult experts from Member States in the field of auctioning.
9. If the assessment referred to in paragraph 8 is positive, in particular if application of the resilience and sustainability criteria has not significantly hindered the deployment of energy from renewable sources, the Commission shall, where appropriate, submit a proposal to amend paragraph 7 to determine the shares of the volume auctioned per year per Member State or the absolute volume to which paragraphs 1 to 5 apply, in particular with a view to increasing those volumes, and to adapt the threshold of the estimated cost differences referred to in paragraph 5.
10. For the purpose of calculating the volumes auctioned per year per Member State, auctions for installations with a maximum project size of 10 MW may be excluded. For auctions for a specific technology to which paragraphs 1 to 5 apply and that have subsequently been undersubscribed, the undersubscribed share of the auction volume may be excluded from the application of paragraphs 1 to 5.
11. To facilitate implementation for all Member States, in particular for those with a low volume of auctions, Member States that have not launched more than 2 auctions per year during the previous 2 years, may compute the share of auctions to which paragraphs 1 to 5 apply over that 2-year period.
Pre-commercial procurement and public procurement of innovative solutions
1. Member States shall seek to use, where appropriate, pre-commercial procurement and public procurement of innovative solutions in order to stimulate innovation in net-zero technology and the creation of new manufacturing capacity for net-zero technologies in the Union. Pre-commercial procurement and public procurement of innovative solutions may be topped up with Union-level funding within the framework of existing Union programmes for joint pre-commercial procurement or public procurement across Member States.
2. The Platform shall prepare recommendations on the design of pre-commercial procurement or public procurement of innovative solutions.
Other forms of public intervention
1. Without prejudice to Articles 107 and 108 TFEU and Article 4 of Directive (EU) 2018/2001 and in line with the Union’s international commitments, when deciding to set up new schemes or to update existing schemes benefitting households, companies or consumers which incentivise the purchase of net-zero technology final products, Member States, regional or local authorities, bodies governed by public law or associations formed by one or more such authorities or one or more such bodies governed by public law shall design those schemes in such a way as to promote the purchase by beneficiaries of net-zero technology final products with a high sustainability and resilience contribution as referred in paragraph 4 of this Article, by providing additional proportionate financial compensation or by conditioning the eligibility of the scheme on the basis of the criteria laid down in paragraph 4 of this Article, while considering the accessibility of the schemes for citizens living in energy poverty.
2. The additional financial compensation granted by authorities in accordance with paragraph 1 of this Article, due to the application of the criteria laid down in paragraph 4, first subparagraph, introductory part and points (b) and (c), of this Article, shall not exceed 5 % of the cost of the net-zero technology final product for the consumer, with the exception of schemes targeting citizens living in energy poverty, as defined in Article 2, point (1), of Regulation (EU) 2023/955 of the European Parliament and of the Council ( 57 ) , for which the limit shall be 15 %.
3. When designing and implementing a scheme pursuant to paragraph 1, the authority shall assess the resilience and sustainability contribution of available net-zero technology final products on the market on the basis of on an open, non-discriminatory and transparent process. Any net-zero technology final product shall be entitled to apply to join the scheme at any time. The authority shall specify a pass mark for net-zero technology final products to be eligible to the additional financial compensation under the support scheme.
4. The sustainability and resilience contribution of other forms of public intervention shall be based on their contribution to resilience, taking into account the proportion of the net-zero technology or its main specific components originating from a third country that accounts for more than 50 % of the supply of that specific net-zero technology within the Union, and at least one of the following:
(a)
environmental sustainability going beyond the minimum requirements in applicable law;
(b)
contribution to innovation by providing entirely new solutions or improving comparable state-of-the-art solutions;
(c)
contribution to the energy system integration.
The criteria referred to in the first subparagraph shall be objective, transparent and non-discriminatory.
This shall not preclude Member States from using additional non-price criteria beyond those laid down in the first subparagraph.
For the purposes of the contribution to resilience referred to in the first subparagraph, introductory part, of this paragraph, the country of origin shall be determined in accordance with Regulation (EU) No 952/2013.
5. Member States shall publish on a single free access website all information relating to schemes pursuant to paragraph 1 for each relevant net-zero technology final product.
Coordination of access to markets initiatives
1. Where relevant, the Commission shall provide guidance on the application of the criteria to assess the resilience and sustainability contribution of net-zero technology products covered by the forms of public intervention referred to in Articles 25, 26 and 28.
2. For the purposes of the assessment of the contribution to resilience, the Commission shall adopt an implementing act providing for a list of each of the net-zero technology final products and their main specific components. That implementing act shall be adopted in accordance with the examination procedure referred to Article 45(2).
On the basis of the implementing act referred to in the first subparagraph, the Commission shall provide updated information on the shares of the Union supply originating in different third countries in the most recent year for which data is available for each of the net-zero technologies and their main specific components. The country of origin shall be determined in accordance with Regulation (EU) No 952/2013.
3. The Platform shall discuss measures carried out by Member States to implement Articles 25 to 28 and exchange best practices, inter alia, with regard to the practical use of criteria defining the sustainability and resilience contribution in public procurement procedures, or schemes incentivising the purchase of net-zero technology final products.
Source: EUR-Lex (Publications Office of the EU), © European Union, reuse permitted under Commission Decision 2011/833/EU.
