In this research focus is on social and environmental considerations in public procurement according to Finnish legislation. The Finnish legislation on public procurement is based on European Union law. The most central question at issue is in which means can social and environmental considerations be taken regard to according to the legislation in force. From a methodological point of view this research is primarily legal dogmatic with focus on interpreting and systematizing the legal norms on public procurement. The systematization is done with the support of legal principles and general doctrines. Viewpoints on the interpretation of the legal norms on public procurement are here put forward in order to present justified arguments on social and environmental considerations in public procurement. It is here discussed de lege lata which specific requirements on social and environmental considerations can be set in public procurement. This research is also to a certain extent de lege ferenda as normative recommendations are put forward regarding the interpretation of the legal norms on social and environmental considerations in public procurement. Examples from other countries are also used in this research, first and foremost from Sweden, as to enlighten the questions discussed. Finland and Sweden have rather similar legal orders and both countries have implemented the new EU-directive on public procurement 2014/24/EU. The possibility to set requirements on social and environmental considerations in public procurement existed also according to the EU-directives on public procurement from 2007 but in directive 2014/24/EU it is more emphasized. One of the aims is to lead the development into a more sustainable direction. The Finnish Government has also committed itself to better foster the taking regard to social and environmental considerations in public procurement. The procuring authority has in every single case on the basis from the subject matter of the contract and the objectives that are pursued assess which social and environmental considerations are of relevance for the procurement at issue. Although it has been possible for the procuring entities to set criteria that specifically award social and environmental considerations, the use of e.g. environmental criteria as a part of the selection criteria economically most advantageous has not been a guarantee for the procuring authorities to have success with implementing sustainable alternatives or awarding sustainability in the different tenders in an equal manner. One challenge for the procuring authorities is that the environmental considerations are often to reduce an environmental problem but concurrently they cannot be too far-reaching that they reduce the amount of tenders and limit the possibilities for a successful procurement. The requirement must thereto comply with the underlying principles of public procurement, as e.g. the principles of transparency and equal treatment. A problem that is specifically connected to the social considerations is that they primarily relate to the manufacturing process. They can thus not solely be evaluated on the basis of the end product and they are difficult to control in a globalized production with complex supply chains. Criteria that include social considerations may above all be used to decide which of the tenders are economically most advantageous if they entail an economic advantage for the procuring authority and relate to the product or service that are object of the contract or to the manner in which the contract is carried out. It is however not allowed to reserve a contract to a specific category of suppliers or to apply price preferences. This also applies to criteria that e.g. concern the number of employees from a specific social category or a requirement to submit a plan for gender equality. A problem that may concern the environmental considerations is the difficulty to define the technical specifications, i.e. to make the call for tenders in such a way that the environmentally friendly can be rated in a manner that regard the various tenders equally. For instance can it be difficult for the procuring authorities without the expertise needed to define such criteria that take into account the practice in a particular branch or the level of the technical development. An approach to more sustainable and environmentally friendly procurements is here to rate the life cycle costs for the procurement. The question whether it on the whole is suitable to use public procurement as a means to achieve goals that are more sociopolitical, as social and environmental considerations, is also discussed. It can be argued that such considerations do not have full effect within public procurement and complicate the regulations. The public sector may though actively contribute to that actors from the third sector and social enterprises have success in competitive tenderings in the public sector. According to directive 2014/24/EU it is e.g. allowed to reserve procurements in the welfare sector to non-profit organizations or to certain operations that have social and vocational integration as a primary goal. Finland and Sweden have though chosen not to assure the position of non-profit organizations as service producers in the legislation. The use of social and environmental considerations prerequisites understanding and knowledge of how to implement them in the definition of the objectives with the public procurement, in the evaluation of the adequacy of the suppliers, in the comparison of the tenders and in the purchasing agreement.
|Status||Publicerad - 2018|
|MoE-publikationstyp||G4 Doktorsavhandling (monografi)|