Finally, there is a new legal opinion, which takes into account and takes due account of changes in the law at EU and federal level. The report draws attention to the reform of the German Public Procurement Act, which entered into force on 18 April 2016. This has been implemented by the EU directive on the award of 2014.
Key findings of the report:
- It can be social and environmental aspects in the award of public contracts without issues to consider: This can also be done at different levels:
- As a performance description, e.g. social innovations (see 34) [it is pointed out in the Opinion that there are alternative legal interpretations on this point]
- As a softer supplementary criterion (s. 34)
- As an implementation condition, e.g. to sanction non-compliance (s. 34)
- It follows that it is not necessary to accept self-explanations. On the contrary, proof of an independent third party may be explicitly required.
- Specifically, a specific quality mark is allowed to be required as proof if the public procurement body accepts all requirements of this quality mark.
- The federal states can obligate the public procurement bodies to demand certain social standards, but only at the level of the performance description and the implementation condition (S. 37f.)
It is very gratifying that, with Dr. Krönke’s report, a new reading of the legal room to manoeuvre for public procurement is finally to be found!
Please refer: Rechtsgutachten von Dr. Christoph Krönke