3 quick takes on the EU Public Procurement Act leak

Brussels slows down, you take longer lunch breaks, have mate/matcha/coffee breaks with anyone who is still around and... you talk about the Public Procurement Act leak (1), of course. After all, there is nothing more thrilling than Public Procurement.

Wait, wait, don't leave yet! This is short and to the point, I promise. I will mention issues that relate to digital, the climate disaster (and how not to avoid it) and how to ignore social aspects when using public money in procurement contracts. Here we go!

1) Digital - Free Software

Just weeks after the publication of the European Tech Sovereignty package, that was accompanied by an EU Open Source Strategy, other parts of the Commission have decided to ignore that priority altogether.

In the leaked document there is no mention to “Public Money? Public Code!”, no Free Software (also known as Open Source) preference or Free Software requirements. The leaked draft misses the opportunity to ensure that, when public money is spent to develop software, it goes to create Free Software so it can be re-used by anyone. It could have well added a requirement for public authorities to justify when they choose proprietary software over Free Software. Nothing in there really points out to Open Source or Free Software First anywhere. Nada.

2) Environment

I found quite concerning the optional treatment of environmental goals when it comes to procurement in the leaked draft. Writing this right after a heatwave that made even more evident the climate emergency, this is a step back regarding our climate goals. Some examples of the bad proposals below:

2.1) Art.52 on Green Public Procurement:

▪ 52.1: “Public buyers may take environmental considerations into account when procuring”. Environmental concerns remain optional.

▪ 52.2: “Public buyers may take such environmental considerations into account…”

2.2) Article 53 on Circular economy and resource efficiency:

• 53.1: “In the preparation of their Needs Plan referred to in Article 31, public buyers shall consider, as appropriate, how their planned procurement may contribute to resource efficiency and the transition towards a circular economy. In particular, they should assess opportunities to reduce resource consumption, prevent waste generation…”

2.3) Article 54 on Energy efficiency: “Public buyers shall, when purchasing goods, services or works purchase whenever possible only those products, services and works with a high energy-efficiency performance.”

Basically yes, public authorities could ignore all of that of saving energy and ensuring we have a liveable planet when they spend public money.

3) Socially (Ir)Responsible Public Procurement

The number of "it would be good if you wanted to do it, but no pressure!" aspects in the leaked European Public Procurement Act draft proposal continue when dealing with socially responsible procurement. In short: Article 56 says that social consideration in public procurement are optional (which will make such a consideration easy to ignore); on a mildly positive note, however, 56.4 adds a reminder of what is and what isn’t socially responsible public procurement. Details:

• Article 56 on Socially responsible Public Procurement: “Public buyers may take social considerations into account when procuring supplies,…”

• 56.4. adds a somewhat positive clarification: “The mere compliance with applicable labour and social law obligations established by Union law, national law, universally applicable collective agreements or by the international social and labour law provisions listed in Annex II, shall not by itself be considered 'socially responsible public procurement.

There are many other aspects of course, but I wanted to focus on these 3 which are probably not analysed by corporate policy nerds out there. Let's see what the final proposal brings in September. Hopefully, something drastically different and in line with previous goals on digital sovereignty, environment and social justice.

(1) The European Public Procurement Act was leaked by Politico on July 9th, the final proposal schedule to be published on 9 September.