October 16, 2020 Public Contract Law Journal

European-Style Green Public Procurement in the American Context: What It Could Look Like

by Romeo N. Niyongere

Romeo Niyongere received his JD in May 2020 from The George Washington University Law School and was a Notes Editor with the Public Contract Law Journal. He would like to thank Judge Kyle Chadwick, Professor Christopher Yukins, Mr. Alois Ndorere, and Ms. Dana Molinari for their time, comments, and support throughout the drafting process.

Abstract

For the past few decades, many regional organizations and countries have enacted several environmental governance tools to cope with alarming and pressing environmental concerns. In the procurement context, the linkage between environmental objectives and federal purchasing has been increasingly discussed as a regulatory tool to achieve environmental protection. This aforementioned link led to the creation of the green public procurement concept. Through its procurement directives and guidelines, the European Union has paved the way on green public procurement and environmental considerations within procurement actions. This Note analyzes some of the features of green public procurement models in the EU that have contributed to its broad and successful usage in procurement actions. Based on that analysis, this Note proposes a two-pronged archetype for the FAR Council to consider, should it seek a starting point for how to prioritize environmental considerations and adopt a European-style approach to sustainable procurement.

I. Introduction

If greenhouse gas emissions continue at the current rate, the atmosphere will warm up by as much as 2.7 degrees Fahrenheit above pre-industrial levels by the year 2040.1 This change will result in grim consequences: mass inundations of coastlines, annual losses in the U.S. economy in the hundreds of billions of dollars, and the intensification of current extreme weather.2 Unless major emitters like the United States3 start undertaking mitigation and adaption efforts, serious consequences lie ahead in the near future.4 Due to this escalating environmental deterioration, sustainable practices such as green procurement have received considerable attention and sparked intense discussion around the world.5 A consensus has emerged that one effective method of addressing environmental concerns is to wield the significant buying power in federal procurements to achieve environmental goals and objectives.6 By leveraging the power of federal purchasing as a regulatory tool for environmental protection, governments can ensure that they are “associated with the highest possible standards” and encourage the broad acceptance of such standards.7

In the European Union, legislators have highly prioritized environmental concerns and have gradually integrated them into procurement rules and regulatory frameworks.8 Procuring authorities in the European Union no longer view procurement as simply being about buying the cheapest goods or services, but rather, “as a process whereby organizations meet their needs in a way that achieves value for money on a lifetime basis and allows delivering aspects beyond savings” such as environmental protection.9 The European Union has positioned itself as a leader on sustainable procurement practices when it comes to the environment.10

As the world’s largest buyer of goods and services,11 the United States’ government has a powerful and strategic tool at its disposal in federal procurement. However, “[w]ith spending power comes obligation and responsibility.” 12 Various presidential administrations have recognized the need for environmental governance and employed this purchasing power in addressing environmental challenges.13 Comprehensive Executive Orders, such as Executive Order 13693,14 have moved the needle towards greater consideration of environmental concerns in federal purchasing.15 While the federal procurement regulatory scheme in the United States has made considerable strides with regards to sustainability, it does not prioritize environmental considerations enough, and it does not ensure that contractors and sub-contractors comply with recognized environmental laws and obligations throughout the procurement process. This is likely due to a lack of political will and the absence of a strong statutory backbone with respect to environmental protection.16 The definitional difficulties associated with green purchasing has also likely enhanced the above problem.17

This Note suggests that elements of the green procurement framework utilized in the European Union can and should serve as a starting point for U.S. federal procurement. Ideally, Congress should pass legislation creating statutory authority that institutes an obligation for the “wide usage of environmentally friendly procurement mechanisms”18 in government contracts.19 More realistically, however, Congress should amend procurement regulations to ensure that environmental considerations occupy a permanent and central place in federal procurement practices.20 If Congress fails to act, federal agencies should promulgate internal guidelines based on Executive Order 1369321 to ensure that environmental concerns are at least a notable consideration in the procurement process.

This Note advances a two-pronged model that demonstrates what European-style sustainable procurement could look like in the United States. However, this model does not purport to be a “Green New Deal”22 type of plan. Although it is undeniable that the looming climate crisis will require significant efforts on the parts of governments, this Note proposes a conceivable and practicable starting point.

The first step would be to amend Federal Acquisition Regulation (FAR) section 9.10423 to require prospective contractors to comply with established environmental laws and obligations in order to be deemed responsible and eligible for contract awards. Second, the FAR Council should amend FAR subsection 15.404-124 to oblige contracting officers to reject abnormally low proposals in a price realism assessment, if such proposals are a result of noncompliance with environmental regulations. This Note also proposes amending FAR part 23 to add a subpart that would enumerate the aforementioned environmental laws and regulations. The specific environmental regulations to be used in conjunction with the responsibility determination and price realism assessment are beyond the scope of this Note and would need to be determined by the FAR Council or Congress. Nonetheless, adopting the proposed amendments would serve as a starting point for substantively integrating environmental considerations in federal procurement.

Part II of this Note provides a background on green procurement and its advantages. Part III analyzes the green procurement model in the European Union and discusses which components should be integrated into the U.S. federal procurement framework. The goal of these sections is not only to familiarize the reader with terminology and concepts often referred to when discussing green procurement, but also to demonstrate that European-style green procurement is feasible in the American context. Part IV provides a brief history of environmental considerations in U.S. federal procurement. Part V demonstrates how the European Union approaches can be translated into the American procurement context and addresses potential counterarguments and obstacles to the reform.

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