Green vehicles in public procurement
Beginning this year, contracts for local government units in performance of their public duties must be executed using vehicles powered by electricity or natural gas. And when awarding contracts for purchase of new means of transport, all contracting authorities must allocate at least a portion of the funds to green vehicles. The Electromobility Act specifies the subject matter of such procurements, limits and types of vehicles.
The requirements for use of electric and low-emission vehicles in public procurement have been imposed by the Act of 2 December 2021 Amending the Electromobility and Alternative Fuels Act and Certain Other Acts, implementing Directive (EU) 2019/1161 of the European Parliament and of the Council of 20 June 2019 amending Directive 2009/33/EC on the promotion of clean and energy-efficient road transport vehicles.
The purpose is to increase the share of low- or zero-emission vehicles on the market. Public procurement is one means to this end, in addition to tax incentives for private users. The amendment sets the minimums for the use of such vehicles by public entities, imposing on one hand an obligation to purchase such vehicles as part of purchases of means of transportation, and on the other hand an obligation to award public contracts to contractors who will perform using such vehicles.
10% green vehicles for every public task
In connection with performance of public tasks assigned to them, when awarding public contracts in accordance with the Public Procurement Law (except for public collective transport), local government units (in accordance with Art. 68(3) of the Electromobility Act) must apply the rule that 10% of the vehicle fleet used to perform those tasks constitute electric or natural gas-powered vehicles. But this rule does not apply to public contracts for summer and winter road maintenance consisting of mechanical cleaning of roadways, in particular sweeping, mopping and preventing and combating winter slipperiness, including ice and snow removal. Communes and counties with up to 50,000 residents are also exempt from this obligation.
From now on, this means that in procurement procedures, local government contracting authorities should introduce requirements for contract performance using vehicles with these defined parameters. This includes appropriate provisions in contracts. And contracting authorities may also set conditions for participation in procedures requiring contractors to have the technical capacity related to this condition by having a certain number of electric and gas-powered vehicles at their disposal.
This requirement directed to local government contracting authorities will be accounted for in oversight of their performance of specific public tasks, not individual contracts. Theoretically, this means that it is possible not to require green vehicles at all in one procurement, but to specify a required percentage of green vehicles greater than 10% in another procurement for the same task. Significantly, contracts currently in force entered into by local government units at a time when the requirement to engage green vehicles was not yet in effect will expire by operation of law on 31 December 2022, if the use of electric or gas-powered vehicles at the level required by the amendment is not ensured in the performance of those contracts. So this year local government contracting authorities have time to conduct new proceedings.
Buying electric and hydrogen
Another rule included in the amendment to the Electromobility Act is already addressed to all contracting authorities (Art. 68a–68e of the Electromobility Act). Its aim is to ensure that newly organised proceedings for purchase of means of transport (but also for leasing, rental and hire) include a statutorily defined percentage of low- or zero-emission vehicles in the number of vehicles covered by public procurement contracts. This participation must also be ensured in procurements for collective road transport services with a value or mileage as referred to in Art. 5(4) of Regulation (EC) 1370/2007. The act specifies in detail which contracts and values are subject to these requirements. It is a fixed catalogue. In particular, this applies to road haulage, waste collection and mail delivery, and it only concerns contracts at values above EU thresholds.
Interestingly, coaches (buses with no standing room) are not covered by the requirements of the Electromobility Act. The types of vehicles to which the act applies are derived from Regulation (EU) 2018/858 of the European Parliament and of the Council of 30 May 2018 on the approval and market surveillance of motor vehicles and their trailers, and of systems, components and separate technical units intended for such vehicles.
By 31 December 2030, 22% of procured vehicles in the M1, M2 and N1 (passenger- and baggage-carrying) categories are to be electric and hydrogen-powered vehicles. Through 31 December 2025, hybrid or natural gas-powered vehicles are also considered green, as long as they meet the emission limits set by the act. In turn, 7% of vehicles for carrying goods with a maximum weight of more than 3.5 tonnes (categories N2 and N3) are to be powered by alternative fuels by 31 December 2025. And over the next five years, their share is expected to increase to 9%.
By 31 December 2025, 32% of procured buses (not coaches) with a maximum weight of more than 5 tonnes, categorised as M3, are to be powered by alternative fuels. Over the next five years, the share of such powered vehicles is expected to increase to 46%.
These solutions do not apply to ambulances and agricultural, forestry and tracked vehicles. Additionally, contracting authorities can modernise the vehicles they already own to bring their propulsion and emission parameters in line with the requirements set for clean vehicles.
Anna Prigan, attorney-at-law, Infrastructure, Transport, Public Procurement & PPP Practice, Wardyński & Partners
