Useful new briefing paper: Building a Vocabulary for Sustainable Procurement (Schooner and Matsuda, 2021)

(c) Michelle Ress (2007).

Steve Schooner and Evan Matsuda have published the useful briefing paper ‘Sustainable Procurement: Building Vocabulary To Accelerate The Federal Procurement Conversation’ (2021). This comes fast on the heel’s of Schooner and Markus Speidel’s earlier ‘‘Warming Up’ to Sustainable Procurement’ (2020), and represents a forceful and useful push to get the discussions on the urgency of a quick transition to (net-zero) sustainable procurement started (in the US), or intensified (elsewhere, perhaps especially in the EU, where the SAPIENS network is also starting to catalyse important aspects of the debate).

Their briefing paper is useful in setting out accessible definitions, and a general overview, of key aspects of an emerging body of knowledge on sustainable procurement (and climate change more generally) and, from that perspective, it can also serve the purpose of offering a blueprint for similar or twin mapping exercises in contexts other than the US. Having a common vocabulary and understanding of key concepts can certainly allow practitioners (and academics) to skip discussions on labelling (or conceptual issues, if this jargon is more palatable to an academic audience) and cut to the chase of exchanging knowledge on practical implementations that are comparable and readily understandable.

The briefing paper also contains a useful rich section on existing resources and, as such, it is a good one stop shop for anyone interested in (US-based) sustainable procurement regulation. And it is intensely referenced, which will also help researchers find a broad number of leads to more specific literature on each of the topics it covers. Lat but not least, the paper formulates punchy and actionable guidelines (or principles) on how to engage with its recommendations.

The briefing paper is perhaps even more useful in sketching how (in the US context) sustainable procurement is a long standing (neglected) aspiration which implementation does not require reinventing the wheel, but rather operating a few levers that have been available to public buyers for a long time. And the paper is also remarkable in politely but clearly putting out the statement that failing to use those levers is no longer acceptable.

I hope the paper will be widely read (even outside the US context) and that the procurement community will get (even more) alive to the urgency of the transition (or transformation) to sustainable procurement.

Perhaps Steve Schooner and co-author/s (or others) could be tempted into bring their guidelines down to a more specific level of practicality, eg writing another paper along the lines of ‘Nobody ever got fired for …’ in relation to sustainable procurement (not a branded ICT supplier) as, in my view, one of the major roadblocks to the adoption of widespread sustainable procurement practices are misunderstandings and myths on the constraints that the legal system imposes (of which there are a fair few, but not as many or as insurmountable as the urban myth would have it), which can have chilling effects on practitioners.

Having a clear boundary drawn on what is legally permissible (and should thus be carried out as a matter of policy, and urgency) and what is not (so pitfalls are avoided and the bad reputation of the legal rules as hindrances on sustainable procurement is not fuelled by the emergence of more bad cases) would be another major contribution. And one that could be replicated in other jurisdictions to establish a benchmark of ‘legal’ sustainable procurement practices, hopefully launching a ‘race to the top’ in years (not many) to come.

New interesting paper on green public procurement -- re Halonen (2021)

Dr Kirsi-Maria Halonen has just published in advanced open access her new paper ‘Is public procurement fit for reaching sustainability goals? A law and economics approach to green public procurement’ (2021) Maastricht Journal of European and Comparative Law.

This is a very interesting paper that takes a law and economics approach to assess recent proposals to make some aspects of green public procurement mandatory, in particular in the context of the EU Green Deal and its expected implementing measures. The discussion relies on European examples and data, but the insights offered by the paper are relevant to all jurisdictions considering using public procurement to tackle the climate emergency.

The paper is well worth reading in full and, to my mind, makes two main original contributions that should be stressed, as they should carefully be taken into account by anyone seeking to leverage public procurement for environmental goals (or sustainability, more generally) by means of a ‘hardening’ of current soft law approaches—that is, via the imposition of procurement-specific mandatory (green) legal requirements. The following is my understanding of those two main points, which Kirsi presents slightly differently in her paper.

First, the paper warns against blanket approaches that would apply across all areas of public expenditure or, relatedly, across types of procurement specified by reference to relatively random administration-based criteria (eg tenders of a value above a certain amount). The paper evidences how the effectiveness of mandatory requirements will vary by industry and, consequently, how the design of mandatory requirements should not be based on demand-side considerations, but rather on supply-side analysis.

More than ever, the need for sophisticated market intelligence to underpin the design of green procurement requirements comes to the fore. Relatedly, the paper shows that, for some industries (or more generally), it is possible (or likely) that regulatory measures other than mandatory public procurement requirements are more effective in promoting the desired green transition. Consequently, an analysis of alternative policy interventions should be carried out ahead of the imposition of such mandatory requirements.

Second, and more originally, the paper shows that one of the key considerations in assessing the effectiveness of mandatory green public procurement requirements has to be their knock-on effect on private consumption patterns. Relying on substitution policy analysis, the paper makes it plainly clear that changes in public demand for green (or sustainable) products will create a mix of incentives that can well result in the increased consumption of dirty (or unsustainable) goods and services by private consumers (both corporate and individual) as a result of rigidities in the supply side of the relevant markets—which, at best, can be resolved as the green transition advances and, at worse, could be structurally resistant.

This shows how, despite public procurement representing anything between 10% and 20% of most economies, policy interventions that are procurement centric can generate net negative environmental (or social) effects if the remainder of the economy (or rather, part of the rest of the economy) is displaced towards goods and services that do not meet the required standards. This once again brings home the message that procurement-specific interventions may not be the preferable (or even desirable) way to try to tackle the climate emergency and that a broader, supply (or industry)- based assessment of alternative regulatory interventions is necessary.

Taken all insights together, I would read Kirsi’s paper as making a very strong argument that green (or sustainable) public procurement must not be seen as a goal in itself, or as intrinsically desirable, and that a broader embedding of procurement within larger legislative initiatives (eg economy-wide minimum requirements, or the imposition of consumption taxes regardless of the public or private nature of the buyer) is likely to be a better way forward.

I also read the paper as offering a persuasive argument against claims that ‘mandating green procurement is better than doing nothing’, or that ‘green procurement is a low-hanging fruit that should be collected before reaching for more difficult targets like individual consumer behaviour’. Without proper analysis of the substitution effects that mandatory green public procurement requirements can generate, none of that should be taken at face value. Which is interesting because it is exactly the same way broader market dynamics operate in public procurement, and precisely the reason why the desirability of the exercise of public buying power needs to be assessed with caution, regardless of the policy goal it seeks to achieve.