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Session 1: International Perspectives

Welcome ��Christopher Yukins �Lynn David Research Professor in Government Procurement Law�GW Law School – Government Procurement Law Program�

• Recording and materials at www.publicprocurementinternational.com and recording at GW Law Government Procurement Law Program YouTube page

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• Audience Questions & Answers

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• Speakers’ statements are in their personal capacities

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Nearly 300 registrants from 63 countries

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Summer Series Schedule

• Session 1: Tuesday, July 23, 2024 -- International Perspectives
• Session 2: Thursday, July 25, 2024 -- Trade Issues
• Session 3: Tuesday, July 30, 2024 -- State & Local

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Each session:

9 am Pacific – 12 noon Eastern US – 18:00 CET

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Agenda – July 23�International Perspectives

• Introductions
• Abby Semple (Greenville Procurement Partners) will discuss developments in the United Kingdom and the European Union
• Jellie Molino (University of Cambridge, post-doctoral fellow) will discuss international institutions’ approaches to green public procurement
• Stepping in for Ezgi Uysal (from the SAPIENS Network project co-hosted by the University of Turin), we will review contract administration issues.  
• Panel Discussion & Questions

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Abby Semple

• Abby Semple is a public procurement consultant with many years of international experience. She has managed complex tenders on behalf of public sector clients in Ireland and the UK. She has also worked on the development of procurement law, guidance and policy at the EU level and in Germany, Denmark, Belgium, the Netherlands, Romania, Spain, Switzerland, Ukraine and the United States.
• Dr. Semple holds a PhD from the University of London, a law degree from Trinity College Dublin and a postgraduate qualification in public procurement from the Institute of Public Administration.
• Her areas of expertise include the EU procurement directives, green and socially responsible procurement, life-cycle costing, framework agreements, contract design and e-procurement. She has developed criteria, tender documents, guidance and training materials on behalf of a number of authorities at local, national and international level, including the Irish Environmental Protection Agency, the European Commission and U.S. Department of Energy.
• Abby writes and speaks frequently on procurement topics throughout Europe and the world. Abby is a member of the Procurement Lawyers’ Association and the University Association for Contemporary European Studies (UACES).

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Jellie Molino

• Dr Jellie Molino is an international legal expert on sustainable public procurement (SPP) with experience working for international organizations, e.g., UNOPS, UNEP, UNDP, World Bank, IFC, OECD, ITC-ILO and ADB. She is a member of the Philippine Bar with specialization in administrative law, environmental law, and corporate compliance. 
• She holds a PhD in Law and Institutions from the University of Turin in Italy (2022), an LL.M in Government Procurement and Environmental Law from The George Washington University Law School in the US (2017), and an Executive MBA from the Asian Institute of Management (2012), a JD from the University of Batangas (2005) and a BA Degree in Philosophy from the University of the Philippines-Diliman (1998).
• She is currently a Post-Doctoral Research Associate at the Hughes Hall Centre for Climate Change Engagement, with research focusing on private law, procurement, and climate change. She also serves as Procurement Advisor for UNOPS and International SPP Expert for the World Bank in Bangladesh.

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Green Public Procurement in the EU and UK

GW Law Summer Series

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23 July 2024

Presenter: Abby Semple, LL.B. Ph.D.

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Big picture

• Many European public bodies now have 25+ years of experience with responsible or sustainable procurement

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• Procurement regulation/case law has become much more ‘friendly’ to GPP compared to 1990s/early 2000s

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• Concerns about low competition and use of direct awards – these seem to be becoming more problematic in many countries

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• Increasing EU environmental and social regulation means some of the traditional focus of GPP is now ‘business as usual’

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• Concern for strategic industries may be displacing principle of open competition

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The direction of the next Commission

“I will propose a revision of the Public Procurement Directive. This will enable preference to be given to European products in public procurement for certain strategic sectors. It will help ensure EU added value for our citizens, along with security of supply for vital technologies, products and services. It will also modernise and simplify our public procurement rules, in particular with EU start-ups and innovators in mind.”

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- Ursula von der Leyen, Europe’s Choice: Political Guidelines for the next European Commission 2024-2029

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Relevant EU legislation 2023-24

• Net Zero Industry Act (2024/1735) sets mandatory sustainability/resilience criteria for procurement of renewable energy technologies

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• Corporate Sustainability Due Diligence Directive (2024/1760) provides for exclusion of bidders from procurement if not compliant.

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• Energy-Performance of Buildings Directive (2024/1275) requires all new public buildings to be zero-emission from 1.1.2028. Energy Efficiency Directive (2023/1791) sets requirements for above-threshold tenders across a wide range of products/services.

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• Batteries Regulation (2023/1542) sets due diligence and sustainability requirements for batteries, and new procurement rules

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• EU Deforestation-free Products Regulation (2023/1115) requires due diligence for wood, cattle, soya, palm, rubber, coffee and cocoa

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UK Procurement Act 2023 - timeline

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Headline changes

• Reduction in number of procedures – Open and Competitive Flexible Procedure. But increase in number of notices (!)

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• Change from Most Economically Advantageous Tender (MEAT) to Most Advantageous Tender (MAT) – but key requirements for award criteria maintained

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• Contracting authorities must have regard to Procurement Objectives and National Procurement Policy Statement – this currently includes minimal environmental ambition

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• Light touch regime extended to cover many more services

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THANK YOU

Abby Semple

Public Procurement Analysis/

Greenville Procurement Partners

abby@procurementanalysis.eu

+44 077 8686 1854

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About - Hughes Hall (cam.ac.uk)

Home - Centre for Climate Engagement (climatehughes.org)

Dr. Jellie Molino

Senior Fellow, Center for Climate Engagement

Post Doctoral Fellow/Faculty of Law

Hughes Hall, University of Cambridge

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• Former Sustainable Public Procurement (SPP) Consultant, UNEP
• Former International/Inclusive Public Procurement Consultant, UNDP
• International SPP/GPP Consultant, The World Bank Group (Bangladesh, Brazil and Angola)
• Procurement Advisor (Retainer), UNOPS

International institutions’ approach to green procurement

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Jellie Molino

Procurement Advisor (Retainer), UNOPS &

Former UNEP Expert on Sustainable Public Procurement

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Top 10 stakeholder recommendations for SPP support from international organizations, 2022

Evolution of stakeholder recommendations for SPP support from international organizations: Ranking of 2020 & 2022 recommendations

Global analysis of data

Need support for:

• Market engagement
• Tools for supporting SPP implementation
• Harmonization & standardization

Regional analysis of data

• Northern America: Market engagement
• Europe: Tools for supporting SPP implementation
• Asia Pacific, West Asia & Africa, Latin America & the Caribbean: Training & capacity building

Increased importance of engaging the market and developing tools for SPP implementation

Source, 2022 UNEP SPP Global Review

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Support for SPP from international organizations

(UNEP, EC & OECD)

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United Nations

Environment Programme

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• SPP Implementation Guidelines (2nd ed. 2021) and accompanying toolkit
• Periodic SPP Global Reviews;
• SDG Indicator 12.7.1 monitoring (2020 & 2022)
• Country-level capacity building and policy support (over 20 countries since 2009)
• Promotion of regional networks (Asia Pacific GPP Network)

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UNEP is a one of the leading organizations in promoting SPP at the global level:

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Source, 2022 UNEP SPP Global Review

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Support for SPP from international organizations (UNEP, EC & OECD):

Distribution of activities

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Leading organization in promoting SPP at the global level:

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47%

22%

28%

32%

59%

29%

18%

19%

43%

3%

Monitoring SPP (including global action for data collection for SPP monitoring

Framework for evaluating SPP (including practical guidance, implementation guidelines, GPP criteria and tools)

Building capacities for SPP (including country level capacity building/policy support, training, webinars, project documents and best practices)

Promotion of regional cooperation in the field of SPP

LEGEND

Source, 2022 UNEP SPP Global Review

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Support for SPP from international organizations (MDBs): Leverage on their roles to promote green procurement

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• MDBs can influence their borrowing countries in the implementation of their developmental projects.
• Development-Financed Institutions
• Primary role of MDBS is to provide financial assistance (lending windows or facilities – concessional, e.g., market-based loans or non-concessional financial assistance, e.g. ,grants or loans below market-based terms)
• Policy Makers
• Promote fundamental institutional and policy reforms (advisers to the government in the development of programs and projects, including structural adjustment policy, poverty reduction)
• Assess the countries’ policies to align with their policies and international best practices.
• Issues of Standards
• Operational policies of MDBs have been used by private financial institutions
• Though voluntary, MDBs may influence Borrowing countries to comply with their standards as prerequisites for financial assistance

Source, 2022 UNEP SPP Global Review

Source, Molino, J., The Role of MDBs in promoting SPP towards the achievement of SDGs

Delivering sustainability impacts through public contracting under MDB-financed projects is an emerging area of influence

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Moving forward*:

UN agencies by way of example

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Issue: Initiatives are currently fragmented, which may lead to the duplication of efforts.

Recommendation: Increased collaboration among them to enhance efficiency and avoid redundancies

Issue: UN Agencies are not leveraging on their purchasing power to promote SP through a joint and collaborative procurement (for SPP)

Recommendation: Collaboration should not be limited on initiatives to promote SP, but more importantly on implementing and/or reporting SP.

Recommendation: UN Agencies should have their own SPP action plan, with mandatory product categories.

UNGM Data as of 8 December 2023, 12:08AM

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Procurement Opportunities (January 1 – December 8, 2023) = 1400

Sustainable Tenders = 19 (Only 1.4%)

Issue: UN Agencies are not “walking the talk”, i.e., very low percentage of published sustainable tenders at UNGM

Contract Administration & Enforcement

Christopher Yukins – GW Law

(standing in for Ezgi Uysal – whose slides are available on the program page)

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Principal-Agent Problem

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Contractor Delivers Eco-Friendly Product

Monitor

Sanction

Photo: Felix O

Agent:

Contracting Official

Principal:

Nation

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Bid

Challenges

Bid Challenges

Debarment

Fraud

Bid Challenges

Debarment

Fraud

Bid Challenges

Contract Claims

Fraud

Bid Challenges

Contract Claims

Fraud

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This project has received funding from the European Union’s Horizon 2020 research and innovation

programme under the Marie Skłodowska-Curie grant agreement No 956696.

Enforcing Sustainability in Contract Performance

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Ezgi Uysal PhD Researcher,University of Turin/ ESR, SAPIENS Network)

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Setting the Scene

This project has received funding from the European Union’s Horizon 2020 research and innovation

programme under the Marie Skłodowska-Curie grant agreement No 956696.

Legal Framework

• Directive 2014/24 on the award of public contracts
• How to buy

SPP

• 1. What to buy 🡪 Technical specifications, award criteria and performance conditions
• 2. Whom (not) to buy 🡪 Selection criteria and exclusion ground
• Predominantly discretionary
• Green and socially responsible

SPP UNDER DIRECTIVE 2014/24

Sustainability Criteria

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Sustainable Contract

Performance

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Sustainable Public Contracts

This project has received funding from the European Union’s Horizon 2020 research and innovation

programme under the Marie Skłodowska-Curie grant agreement No 956696.

Sustainability-related contractual obligations

regardless of the criteria they arise

• technical specifications e.g. Supply of organic food

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• award criteria (provided that tender submitted responds) e.g. Employment of long-term unemployed in a contract for cleaning services

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• contract performance conditions e.g. delivery of office supplies with electric cars in a framework agreement for office supplies

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• selection criteria (provided that it is forward-looking) e.g. Environmental management system in the performance of construction of a new hospital

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Compliance in Contract Performance

• Beyond non-conformity
• Beyond fundamental non-performance
• Contracts vs Performance
• Contract Modification?

This project has received funding from the European Union’s Horizon 2020 research and innovation

programme under the Marie Skłodowska-Curie grant agreement No 956696.

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Non-Enforcement as Contract Change

This project has received funding from the European Union’s Horizon 2020 research and innovation

programme under the Marie Skłodowska-Curie grant agreement No 956696.

Contract performance 🡪 not regulated, exception 🡪 contract changes

Developed through case law 🡪 now Article 72

Rationale🡪 principle of equal treatment

Not always explicit amendment

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Contract Management for SPP

This project has received funding from the European Union’s Horizon 2020 research and innovation

programme under the Marie Skłodowska-Curie grant agreement No 956696.

• No unrealistic all-or-nothing compliance
• Transparency
• Self-Cleaning and Progress through Contract Design

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THANK YOU

This project has received funding from the European Union’s Horizon 2020 research and innovation

programme under the Marie Skłodowska-Curie grant agreement No 956696.

Questions & Discussion

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Conclusion

Video recording of today’s session will be available on GW Law – Government Procurement Law YouTube Page & www.publicprocurementinternational.com

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Session 2: Trade Issues

Welcome ��Christopher Yukins �Lynn David Research Professor in Government Procurement Law�GW Law School – Government Procurement Law Program�

• Recording and materials at www.publicprocurementinternational.com and recording at GW Law Government Procurement Law Program YouTube page
• Audience Questions & Answers
• Speakers’ statements are in their personal capacities

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Over 300 registrants from 63 countries

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Agenda – July 25�Trade Issues

• Introductions
• Robert Anderson (World Trade Organization – retired), will explain how trade agreements can facilitate green procurement, balancing the importance of open markets.
• Tom Daley (DLA Piper) and Chris Yukins (GW Law) will assess how common initiatives in green procurement raise trade issues, and might be best addressed.
• Discussion & Questions

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Robert Anderson

• Robert Anderson is a part-time academic, independent consultant and trainer on matters relating to competition policy, government procurement, intellectual property and the multilateral trading system. He currently lives in Sarasota, Florida.
• He previously worked in the Secretariat of the World Trade Organization from 1997 through 2019, and held the position of Senior Counsellor and Team Leader for Government Procurement and Competition Policy in the Organization from 2005 through March 2019. In the course of his career, he has led workshops and seminars or delivered presentations on topics in his areas of responsibility in more than 80 countries, worldwide.
• Mr Anderson holds the title of Honorary Professor in the School of Law at the University of Nottingham (United Kingdom). Additionally, he currently serves as an external (adjunct-style) faculty member in the International Public Procurement Management Program at the University of Rome Tor Vergata (Italy); its sister program at the University of Belgrade (Serbia); and the Academy of International Economic Law and Policy (AIELPO) of the European Public Law Organization in Athens, Greece.
• He has previously lectured at the World Trade Institute (University of Bern, Switzerland); the IELPO Program of the Faculty of Law, University of Barcelona; and the International Masters Program on International Trade and Investment of the Catholic University of Lyon; and has been a guest speaker, on multiple occasions, in relevant courses of the George Washington University Law School (United States).
• Mr. Anderson is editor of three books and more than 75 published articles in academic, legal and professional journals and/or chapters included in significant academic volumes.
• Robert Anderson holds a B.A. with Honours in Economics from the University of British Columbia (Vancouver, Canada) and a J.D. (Juris Doctor) from Osgoode Hall Law School (Toronto, Canada).

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Tom Daley

• Tom Daley focuses his practice on assisting companies who do business with federal, state, and local governments with litigation matters, grants, investigations, environmental matters, and regulatory counselling and compliance issues.
• Tom has successfully litigated bid protests before the US Court of Federal Claims and US Government Accountability Office, as well as size protests before the Small Business Administration and Office of Hearings and Appeals. Tom also represents contractors in contract administration matters and with claims under the Contract Disputes Act. Tom assists clients in internal investigations, investigations brought by Inspectors General, and Department of Justice investigations related to actions brought under the False Claims Act.
• Additionally, Tom advises clients on emerging environmental and climate change requirements that are becoming increasingly common in the federal procurement process, as well as on developments relating to agencies’ sustainable procurement policies. He has counseled clients regarding the FAR Council’s proposed disclosure of greenhouse gas emissions and climate-related financial risk rule and its proposed sustainable procurement rule.
• Tom is a widely published author who writes about complex issues within the government contracts field, including bid protests, the False Claims Act, and sustainable procurement matters. His works have been published in leading government contracts publications, including the Public Contract Law Journal, Law360, PubK, and The Procurement Lawyer.

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�The WTO Agreement on Government Procurement (GPA) as a Multi-Purpose Trade Instrument� �Actioning its Contribution as a Tool of Environmental Sustainability

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Robert D. Anderson

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GW LAW SUMMER SERIES:

GREEN PUBLIC PROCUREMENT

25 July 2024

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Multipurpose trade policy: a new paradigm for the WTO and trade policy generally

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According to a recent statement by the International Institute for Sustainable Development (IISD):

After years of upheaval in international economic relations, a new approach to trade policy is taking shape: multipurpose trade policy. … this approach no longer just tries to achieve an efficient international division of labour through trade liberalization. Rather, it tasks trade policy with achieving other substantive policy objectives as well, which include bolstering labour rights, addressing inequality, building resilient supply chains, safeguarding national security, and mitigating the climate crisis.

The GPA 2012 as perfect example of the new paradigm!

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The GPA Work Programme on Sustainable Procurement: a major opportunity for further progress!

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The new EU-US Joint Catalogue of Best Practices on Green Public Procurement

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In April 2024, the EU and the US jointly issued an extensive “Catalogue” of perceived best practices for promoting green public procurement (GPP) drawn from experience in their respective jurisdictions.

But everything is not entirely ‘rosy’ in the trade and procurement garden

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From the Annual Report (2023) of the WTO Committee on Government Procurement:

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... a number of delegations raised concerns about how the United States had been implementing its “Build America, Buy America Act” (BABA Act), which is part of the US Infrastructure Investment and Jobs Act. In particular, these delegations raised concerns about the recent guidance issued by the US Office of Management and Budget, which in their view fails to ensure compliance with the United States’ obligations under the [2012 text of the WTO Agreement on Government Procurement, or “GPA 2012”]. The United States rejected the concerns raised [emphasis added], referring to the publication in October 2023 by the Office of Management and Budget of a supplementary memorandum that provides guidance on consistency with international agreements.*

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• Tensions might increase further if there is a change of US Administration!

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• And higher costs due to old-fashioned protectionism risk undermining the needed green future!

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*NB: the concerns articulated in the Committee were not strictly limited to the “green” aspects of US public procurement policies.

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Summary and concerns for the future

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"Green Procurement": �International Trade Issues

Tom Daley – DLA Piper

Christopher Yukins – GW Law

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"Green Procurement" Has Evolved Common Approaches

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Steven L. Schooner

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The EU and the U.S., Leading Trading Partners, Have Confirmed That These Are Common Approaches 

The joint catalogue reflects a common understanding on how “green public procurement” — public procurement grounded in environmental sustainability — can positively contribute to achieving shared environmental goals posed by climate change. The catalogue identifies key policies, actions and best practices in green public procurement, as part of a broader effort to use public procurement to “catalyze” reductions in the greenhouse gasses which cause global warming.

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Webinar on publicprocurementinternational.com

Next Steps: Information Exchanges on Costs and Common International Standards

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• Potential Issues
• Sharing lessons learned to facilitate procurement planning
• Common approaches for vendors to compile data on greenhouse gas (GHG) emissions
• Incorporating “green” issues into contractor qualification – and how to share qualification data
• Compatible eco-labels and life-cycle costing

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Economic and Administrative Issues – Including Costs and Standards – Will Drive Prioritization of “Green Procurement” Issues in International Trade

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Planning & Ecolabels:�New U.S. Rule on Green Procurement �89 Fed. Reg. 30212 (Apr. 22, 2024)

• New clause FAR 52.223-23, Sustainable Products and Services (May 2024)
• Requiring agencies must procure sustainable products and services “to the maximum extent practicable”
• Applies to all procurements, including micro-purchases
• Does not apply to weapon systems, or to contracts performed abroad
• Requiring agency is to list the required sustainable products and services in the solicitation
• Agency may decide not to require sustainable goods or services (FAR 23.103-.104) (and if so must prepare written justification) because of:
• Price not reasonable (life-cycle cost assessment recommended but not mandatory)
• Performance issues (e.g., mission demands, quality, “Buy American” and cybersecurity)
• Time (cannot purchase competitively within a reasonable performance schedule)
• Requiring agency lists sustainable products/services, evaluates and enforces
• Defines “sustainable products and services” to specify that products and services must meet, e.g., the Environmental Protection Agency (EPA) Recommendations of Specifications, Standards, and Ecolabels (“EPA Recommendations”) in effect as of October 2023
• EPA Recommendations include 40+ ecolabels – Ecolabel Index reports 456 ecolabels worldwide
• Compare EPA Framework for assessing ecolabel standards vs. EU Procurement Directive Art. 53 / Max Havelaar (CJEU C-368-10)

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Proposed Rule Stalled: �Contractor Qualification (and eventually Technical Evaluation)

• Contractor Qualification: High Potential Costs Have Helped Stall Efforts to Require Greenhouse Gas (GHG) Disclosures
• U.S. proposed rule (87 Fed. Reg. 68312 (Nov. 14, 2022) would require major Federal contractors ($50m+ annually in federal obligations) to publicly disclose their annual greenhouse gas emissions and climate risk assessment
• Proposed pursuant to section 5(b)(i) of Executive Order 14030, "Climate-Related Financial Risk.”
• Final rule risks being challenged under Supreme Court’s decision in Loper Bright (see webinar), which reaffirmed the judiciary’s primacy in reviewing agency rules; may be challenged under “major questions” doctrine if not based on an express grant of authority from Congress
• Blocked by Section 318 of National Defense Authorization Act for FY2024: Defense Department may not collect GHG information from traditional Defense contractors for one year, with permanent bar for nontraditional contractors.
• In parallel with Securities & Exchange Commission (SEC) curtailed effort to require companies to disclose climate-related risks
• SEC efforts opposed by Heritage Foundation’s Project 2025, which argues that the SEC, to improve capital markets, should “[o]ppose efforts to redefine the purpose of business in the name of social justice; corporate social responsibility (CSR); stakeholder theory; environmental, social, and governance (ESG) criteria; socially responsible investing (SRI); sustainability; diversity; business ethics; or commongood capitalism.”
• SEC dropped requirement for Scope 3 (supply chain) disclosures in final rule
• SEC rule enjoined by U.S. Court of Appeals for the Fifth Circuit, and agency stayed implementation (April 2024)
• In parallel with new California laws calling for climate risk disclosures by large companies (SB 261), and Scope 1, 2 (by 2026) and 3 (by 2027) GHG emissions disclosures by companies with revenues over $1 billion (SB 253)
• Also in parallel with European Commission Corporate Sustainability Due Diligence Directive, which requires large companies to monitor and potentially address human rights and environmental risks

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Thank you

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Panel�Discussion Questions

• Does it matter, for trade purposes, that “green procurement” measures, even though potentially discriminatory, are part of parallel efforts internationally?
• Which “green procurement” approach is least likely to trigger trade concerns? Which is the most likely to trigger international concerns?
• Abby Semple in Session 1 quoted the European Commission’s President Ursula von der Leyen, who said she “will propose a revision of the [EU] Public Procurement Directive” which will “enable preference to be given to European products in public procurement for certain strategic sectors.”
• Is there a mechanism under the GPA to address – prospectively -- potentially discriminatory “green procurement” measures in a new EU directive?
• Are there effective means to challenge a discriminatory “green procurement” measure under the U.S. bid protest regime?
• Can a vendor that can never meet “green procurement” qualification requirements challenge that in the abstract – or must that vendor be excluded from a procurement before it has standing to bring a challenge?

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Audience Questions & Discussion

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Conclusion

Video recording of today’s session will be available on GW Law – Government Procurement Law YouTube Page & www.publicprocurementinternational.com

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Session 3: State & Local

Welcome ��Christopher Yukins �Lynn David Research Professor in Government Procurement Law�GW Law School – Government Procurement Law Program�

• Recording and materials at www.publicprocurementinternational.com and recording at GW Law Government Procurement Law Program YouTube page
• Audience Questions & Answers / Chat
• Speakers’ statements are in their personal capacities

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Recap of Sessions 1 and 2�(on publicprocurementinternational.com)

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1. Emerging internationally as leading strategy

2. Raises Potential Trade Barriers

What is the leading strategy for green procurement in your jurisdiction?

Poll Question 1: Strategies for Green Procurement

Answers (please choose one):

1. Planning? 2. Contractor qualification? 3. Eco-Labels? 4. Technical evaluation? 5. Life-cycle costs?

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NASPO: Key Steps to Sustainability

• Legal Mandate: “For long-term viability, sustainability initiatives should be” based upon “an exercise of authority, such as a governor’s executive order, legislation, or administrative rule or regulation.”
• Stakeholder Coordination: “Sustainable procurement programs and training should be developed with the cooperation and input from a wide range of stakeholders, including agency customers, [certifying] organizations . . . and suppliers.”
• Statement of Authority, Policy, Coverage, Roles and Waivers: A successful initiative needs “a policy that clearly outlines its purpose, the legal authority establishing that policy, the commodities and services covered, and the external verification tools used to make it credible.” That policy “should also identify the roles and responsibilities of the staff responsible for implementing it and the conditions under which waivers from the program will be granted.”
• Reporting on Success: Reporting on the public agency’s use of sustainable goods and services “is critical, either through [spend data] or, if not, through reports that contractors provide.” The initiative’s effectiveness “should be tracked and measured using techniques such as total cost of ownership and life-cycle costing.”

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Agenda – July 30�State & Local�

• Introductions
• Nationally recognized experts will discuss how green procurement is becoming a reality in state- and local-level procurement in the United States:
• Emily Soontornsaratool (Department of General Services, Maryland)
• Cary Watters (Sustainable Procurement Program Manager, Portland, Oregon)
• Julia Wolfe (Director of Environmental Purchasing, Massachusetts)
• Panel Discussion & Questions

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Emily Soontornsaratool

• Emily Soontornsaratool is the Chief of Sustainability at the Maryland Department of General Services where she leads a statewide green procurement program.

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• Emily serves as the Chair of the Maryland Green Purchasing Committee, an interagency committee to advance sustainable procurement in Maryland state government.

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• She also leads the State's centralized Electric Vehicle (EV) infrastructure program, which supports Maryland's transition to a zero emission fleet.

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• Emily is a certified Project Manual Professional (PMP) by the Project Management Institute, and certified Climate Change Professional (CC-P) by the Association of Climate Change Officers. She is a 2023 graduate of Leadership Baltimore County.

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Cary Watters

• Cary Watters is the Sustainable Procurement Program Manager for the City of Portland
• She previously served as a Contracts Supervisor and Contract Equity Coordinator at the Portland Bureau of Transportation
• Before that, she was a Founding Member and Communications Specialist with the Portland Clean Energy Initiative.
• She also worked for several years with the Native American Youth and Family Center in Portland
• She has a dual bachelors degree in Environmental Sciences & Public Policy from the Evergreen State College, and a Master of Urban & Regional Planning Degree (with a specialization in Environmental Planning) from Portland State University

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Julia Wolfe

• Julia serves as the Director of Environmental Purchasing, Commonwealth of Massachusetts
• She was previously an Environmental Analyst and Planner with the Massachusetts Department of Environmental Protection
• Julia Wolfe also served as an Environmental Planner/Waste Reduction Coordinator in the U.S. Environmental Protection Agency
• She has a Masters in Geography, Resource Management and Environmental Planning from San Francisco State University, and a BA in French from the University of Wisconsin-Madison

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Maryland’s Green Purchasing Program

Emily Soontornsaratool

Chief, Sustainability, Maryland Department of General Services

Chair, Maryland Green Purchasing Committee

Maryland’s Green Purchasing Program

• Est. 2010 by the Green Maryland Act
• Inter-Agency Green Purchasing Committee
• General Services (Chair & Provides Staffing)
• Budget & Management
• Commerce
• Education
• Environment
• Health
• Information Technology
• Natural Resources
• Public Safety & Correctional Services
• State Treasurer
• Transportation
• University System of Maryland

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Promote

Train

Develop policies & guidelines

Coordinate

Publish Specs

Report

Green Purchasing Requirements

“All procurement agencies shall purchase environmentally preferable products and services unless purchasing environmentally preferable products and services would limit or supersede any requirements under any provision of law or result in the purchase of products and services that:

(1) Do not perform adequately for the intended use;

(2) Exclude adequate competition; or

(3) Are not available at a reasonable price in a reasonable period of time.”

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Maryland Regulation 21.11.07.09

“To encourage the maximum purchase of environmentally preferable products and services, the Maryland Green Purchasing Committee established under § 14–410 of this subtitle shall establish environmentally preferable specifications to be adopted by State agencies.”

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Maryland State Finance & Procurement Article §14–405.

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Maryland agencies are required to procure environmentally preferable products and services.

The Committee issues specifications that State Agencies must then use in their procurements.

Training Procurement Professionals

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Building a Green Purchasing Literate workforce of Maryland procurement professionals

Maryland Procurement Academy

• All State procurement professionals going through Certified Maryland Procurement Officer (CMPO) training take Green Purchasing 101

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CMPO Green Purchasing Specialist Certification

• A voluntary Deep Dive in Green Purchasing including ecolabels, greening solicitations and contracts, compliance, climate literacy. Results in a certification (3 year renewal cycle)

Reporting

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Report Annually the General Assembly and Governor

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July 30, 2024 GW Law Summer Session

Cary Watters, Sustainable Procurement Program Manager

City of Portland, Oregon

Sustainable Procurement at the City of Portland, Oregon

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July 30, 2024 GW Law Summer Session

Cary Watters, Sustainable Procurement Program Manager

City of Portland, Oregon

Sustainable Procurement Policy Framework

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https://www.portland.gov/policies/administrative/purchasing/adm-109-sustainable-procurement-policy

July 30, 2024 GW Law Summer Session

Cary Watters, Sustainable Procurement Program Manager

City of Portland, Oregon

2016 Supply Chain Analysis findings

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https://www.portland.gov/sites/default/files/2020-06/sustainable-supply-chain-analysis-2016-executive-summary-final.pdf

July 30, 2024 GW Law Summer Session

Cary Watters, Sustainable Procurement Program Manager

City of Portland, Oregon

How We Do It

What Program Staff Do:

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• Tools for procurement staff
• Cut & Paste specs, topic background info, etc.
• Basics that don’t change often

• High Impact, High Priority
• “Emerging” practices that need pilot testing, proof of concept

• Training Services
• Evaluation technical assistance
• On-Demand Q&A
• Cross-Bureau committees

Everyday Resources

Special Projects

SME Support

https://www.portland.gov/procurement/sustainable-procurement-program/sp-overview

July 30, 2024 GW Law Summer Session

Cary Watters, Sustainable Procurement Program Manager

City of Portland, Oregon

Commonwealth of Massachusetts�Operational Services Division�Climate & Sustainability Program�

Julia Wolfe, Director of Environmental Purchasing

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Regulations, Policies and Executive orders

From the Recommendations of the Climate Chief Hoffer:

Update procurement practices to require disclosure of emissions and climate risk.… The Commonwealth spent two billion dollars in FY 2022 on purchases of goods and services through OSD's Statewide Contracts. By signaling greater attention to emissions reduction, the Commonwealth can drive more climate-responsible decision-making throughout the economy. 

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EPP Integration into Contract Development, Management and Training

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FY23 Annual Reporting

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EPP Reporting

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��

www.mass.gov/epp

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Julia Wolfe

Director

Environmental Purchasing

Operational Services Division

617-720-3153

Julia.wolfe@mass.gov

• EPP Products and Services Guide – buyers guide to finding EPPs on statewide contracts
• In-Depth Info on:
• Saving Money with EPPs
• Commercial Battery Powered Landscape Equipment
• Alternative Fuel Vehicles
• Recycle and Buy Recycled – Close the Loop!
• And more….
• EPP Annual Reports – documents progress on EO515
• EPP Program Policies –
• EPP general info, requirements and guidance
• Minimum EPP specifications guide
• Model EPP Purchasing Policies

mass.gov/osd

@Mass_OSD

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NASPO: Green Procurement Nationwide

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NASPO: Key Steps to Sustainability

• Legal Mandate: “For long-term viability, sustainability initiatives should be” based upon “an exercise of authority, such as a governor’s executive order, legislation, or administrative rule or regulation.”
• Stakeholder Coordination: “Sustainable procurement programs and training should be developed with the cooperation and input from a wide range of stakeholders, including agency customers, [certifying] organizations . . . and suppliers.”
• Statement of Authority, Policy, Coverage, Roles and Waivers: A successful initiative needs “a policy that clearly outlines its purpose, the legal authority establishing that policy, the commodities and services covered, and the external verification tools used to make it credible.” That policy “should also identify the roles and responsibilities of the staff responsible for implementing it and the conditions under which waivers from the program will be granted.”
• Reporting on Success: Reporting on the public agency’s use of sustainable goods and services “is critical, either through [spend data] or, if not, through reports that contractors provide.” The initiative’s effectiveness “should be tracked and measured using techniques such as total cost of ownership and life-cycle costing.”

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In your jurisdiction are green procurement initiatives based upon “an exercise of authority, such as an executive order, legislation, or administrative rule or regulation”?

Poll Question 2: Legal Mandate?

(Yes or No)

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In your jurisdiction, are sustainable procurement programs and training developed with the cooperation and input from a wide range of stakeholders, including agency customers, [certifying] organizations . . . and suppliers?

Poll Question 3: Stakeholder Coordination? (Yes or No)

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Does your jurisdiction have “a policy that clearly outlines its purpose, the legal authority establishing that policy, the commodities and services covered, and the external verification tools used to make it credible”?

Poll Question 4: Statement of Authority, Policy, Coverage and Verification Tools?

(Yes or No)

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Does your jurisdiction’s policy “identify the roles and responsibilities of the staff responsible for implementing it and the conditions under which waivers from the program will be granted”?

Poll Question 5: Identify Roles and Waivers? (Yes or No)

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Does your jurisdiction report on public agencies’ use of sustainable goods and services, either through spend data or reports provided by contractors?

Poll Question 6: Reports on Success?

(Yes or No)

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Questions & Discussion

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Conclusion

Video recording of today’s session will be available on GW Law – Government Procurement Law YouTube Page & www.publicprocurementinternational.com

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