Aplinkos teisės reikalavimų pažeidimas kaip pagrindas pašalinti tiekėją iš viešųjų pirkimų Lietuvoje ; Violation of environmental law as the ground for exclusion of economic operators from public procurement in Lithuania

Abstract

One of the means of integration of environmental protection requirements into public procurement law is to ensure that economic operators comply with environmental law requirements. An economic operator, who has committed a violation of environmental law before or during the course of public procurement procedure, may be excluded from public procurement, if he does not prove that the measures, that he has implemented, are sufficient to demonstrate his reliability. Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC and respectively – Lithuanian national law has established the requirement for the supplier to not be in breach of environmental, social and labour law as a separate, qualitatively new ground for exclusion in public procurement. This measure, although generally perceived as a restriction of rights of dishonest, unreliable suppliers to participate in public procurement, has also a preventive nature, ensures compliance with environmental law requirements of suppliers who have a general interest of participation in public procurement, deters them from violating environmental obligations, contributes to the enforcement and implementation of environmental law objectives, strengthens the efficiency and effectiveness of environmental law. It is suggested that a wider, more diverse concept of exclusion of suppliers from public procurement procedures for violations of environmental law has to be adopted in national public procurement regulation and practice in order to pursue environmental goals. In Lithuania the integration of environmental aspects into the legal regulation of public procurement results in complexity of procedures, requires specific knowledge and experience of contracting authorities in the field of environmental law. Frequent changes in legal regulation, legal uncertainties and the lack of sufficient judicial practice raises various questions regarding scope, conditions, possibilities and other practical aspects of application of exclusion of suppliers from public procurement due to violation of environmental law. New public procurement regulation highlights the following application and implementation problems: a discretionary status of this exclusion ground, merging of environmental and social requirements, which are assigned different legal value in public procurement, into one exclusion ground, application of restriction to participate in public procurement only to suppliers subject to administrative liability in the field of environmental law, application of this exclusion ground exclusively in the course of public procurement procedures, excluding the contract performance stage. It is submitted that in Lithuania the public procurement regulation has to be amended in order to accommodate to the fullest extent environmental protection requirements and strengthen the implementation of environmental law