Stronger ESG focus in Belgian federal public procurement contracts

ESG issues and related topics such as sustainability, environment, and carbon footprint have been high on the business agenda for several years, and their importance will only continue to grow.

The same applies for the public sector. Recently, the Belgian federal government has approved a new policy for the public procurement of goods and services for 2021-2023, which focuses strongly on sustainability. The initiators of the proposal explained that although the federal government procures goods and services in the market for a total of more than EUR150 million per year (including transport vehicles, furniture, ICT services and waste collection), until now sustainability only played a role in 2% of those purchases. The federal government wants to make sustainability a core criterion in the procurement of goods and services by federal public bodies.

Several measures have been proposed, including a mandatory list of eligible products the federal services will need to choose from. Only products aiming at 100% sustainability will be included on this list. These products will be selected on the basis of criteria such as environment, social and ethical aspects and innovation.

Relevant factors include the packaging, the expected lifecycle of the product, the impact on climate, and the question of whether a product can be repaired rather than replaced. According to the same proposal, public services will be forced to select products from this list except in appropriately substantiated cases (the “comply or explain” principle).

The new policy is also intended to ensure that it further facilitates SMEs’ and start-ups’ participation in public tenders. So the procedure will be made more transparent, flexible and tailored to SMEs. Large tenders will be split into lots, administrative obligations will be limited, and payment terms will be reduced.

The federal government will also evaluate whether the regulatory framework should be amended to take these goals into account. One of the ambitions is to create a list of clauses to be included in future RFPs that would stimulate tenderers to submit an ethical, sustainable, environmentally and socially responsible tender.

ESG will receive more attention in future tenders, especially those issued by the federal bodies, and RFPs may require specific commitments in terms of ESG for a tenderer to be successful. Companies interested in participating in public tenders should think about how they can best meet these objectives and ambitions, which measures they can take, and how these can best be reflected in their future offers. In Brussels, our team of public procurement and ESG lawyers can help you with this.