Emmanuel Macron, Bruno Le Maire and Roland Lescure announced it (and relayed it a lot) this weekend: after its adoption by the Senate in June,
the Green Industry Act has now been adopted by the French National Assembly.
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Among the 15 key measures of this law, which aims to make France the leader in green industry in Europe, are measures and elements concerning public procurement. What’s more, an entire section (Title II) is devoted to the “environmental challenges of public procurement”. Prime Conseil gives you an overview of some key points.
1. Lack of non-financial transparency: grounds for exclusion from public procurement contracts
This is one of the main contributions of the Green Industry Act, contained in Article 13, soberly entitled: “Measures to green public procurement”.
One of the key measures is to accompany the transposition of the CSRD directive by giving public purchasers the option ofexcluding candidates who fail to meet their obligations to publish extra-financial information, particularly environmental information.
More specifically, companies subject to the obligation to publish an “ESG” report may be excluded if they have not met their obligation for the year preceding the AAPC (invitation to tender). To date, this includes virtually all listed companies, as well as those with sales in excess of €40m. The thresholds are due to be lowered on January 1, 2024, then 2025.
However, this option is left to the discretion of the public purchaser. We’ll certainly have to wait for further details from the DAJ (Legal Affairs Department) to find out how this will be applied in concreto.
2. Introducing new environmental objectives into SPASERs
First of all, what is a SPASER? According to the French Public Procurement Code, the “SPASER” or “Schéma de Promotion des Achats Socialement Responsables” (Scheme for the Promotion of Socially Responsible Purchasing) sets out the objectives of a purchasing policy that includes social elements aimed at contributing to the social and professional integration of disabled or disadvantaged workers, and ecological elements, as well as the procedures for implementing and monitoring these objectives on an annual basis.
The Green Industry Act introduces new elements into SPASERs, such as: the objective of reducing the environmental footprint, the objective of reducing emissions and consumption of energy, water and materials, and the consideration of digital sobriety.
The Senate expressed doubts about the practical adoption of this law, pointing out that by 2022, less than a third of public purchasers subject to the obligation to publish a SPASER had complied with this requirement. The implementation of these obligations is questionable, as there are currently no penalties for non-compliance.
However, one of the new features introduced by the Green Industry Act is the possibility for several public purchasers to draw up a joint SPASER, an opportunity that many local authorities should seize.
3. Inclusion of environmental criteria in tender selection criteria
It’s a semi-new feature, especially as we see more and more of it in the public procurement contracts and tenders we work on, but the modification of Article L.2152-7 of the French Public Procurement Code is worth noting!
In fact, this short passage is added at the end of the article: “which includes the price or cost criterion and one or more other criteria including qualitative, environmental or social aspects.”
It should be noted that the public purchaser will be able to choose between criteria presenting qualitative, environmental or social aspects, and will probably favor the “qualitative” aspects already present in almost all contracts. However, we are seeing more and more rating criteria incorporating the CSR dimension into consultation regulations, so the trend is set to grow.
4. A requirement to use “retrofitted” vehicles
This is one of the substantial changes, at least in terms of resonance, brought about by the Green Industry Act.
Contracting authorities are now invited to acquire or use – when renewing their fleets – vehicles “whose internal combustion engine has been converted to battery or fuel cell electric, bioNGV or hydrogen power”.
We’ll have to wait for the implementing decree to find out what proportion of vehicles will be affected, but it’s likely to upset the balance of public vehicle procurement contracts in the months to come!
Conclusion
Although it underwent a number of adjustments and sometimes a reduction in ambition in the run-up to its adoption, the Green Industry Act is a real step forward in terms of greening the economy and reindustrialization.
Beyond the announcement effects, this law also impacts public procurement on the various aspects mentioned above. Although the application of new exclusions, the introduction of SPASERs and the renewal of vehicle fleets will take time to be implemented in practice, the public purchasers and companies who are quickest to adapt and respond to these challenges will undoubtedly be the big winners in tomorrow’s public procurement markets.
