The impact of the circular economy on the awarding of a public contract, beyond sustainable development

Abstract

Environmental protection is enriched by a further piece: the circularity. If the sustainability parameter had already affected financial and real estate wealth, the circularity criterion seems to affect the level of competition through the conditioning of public decision-makers.

The latest Action Plan for the Circular Economy of the European Union is significant, which identifies specific measures and areas of intervention. It is, in particular, a new action plan, additional – and/or specific – to that of sustainability, now part of the construction of a European Bauhaus, antithetical to the linear economy and coinciding with the circular economy.

Decisive for the implementation of that Plan is the spread of so-called circular contracts with which public administrations orient the market both in relation to the specific contract and because they represent a virtuous example for the private consumer.

First of all, the principle of circularity affects the entire life cycle of the contract, immediately conditioning the planning of public administrations, which must identify exactly both the public needs with a view to reducing consumption, sharing purchases, reuse, etc., and the availability of products on the market, circular services so as to choose the most suitable administrative procedure.

Then, the principle of circularity affects the criteria for selecting the offer, upstream, and the downstream contract. Without prejudice to the obligation, in fact, to comply with the technical regulations applicable to the subject of the contract and, in particular, the minimal environmental criteria, with the inclusion in the lex specialis of any environmental technical specifications on the circularity of the product, the contracting authorities limit the number of potential tenderers (with the required requirements); they allow the formulation of high economic offers with the consequence of having to take into account the 'cost' rather than the 'price' and with it the value chain; at the same time, they circumscribe the subject matter of the contract, conforming its function (rectius, the cause) – in terms of choosing the best offer – to the objectives of environmental sustainability and circularity underlying them.

From this point of view, in order for the circular economy to take root in the market without, however, being anti-competitive, compromising access to the market for a significant slice of economic operators, it is necessary that: a) the contracting authority does not impose a single technical solution; b) the inclusion of the minimal environmental criteria or environmental technical specifications is not just a formal reference to a discipline not specifically declined in the tender documentation precisely because these requirements serve to conform the performance of the contractual service.