Using Contracts to Further Sustainability? A Contract Law Perspective on Sustainable Public Procurement

The starting point of this contribution is the contractual character of public procurement and how contract design and contract law influence sustainable public procurement practices. The specific question addressed is whether, and to what extent the further development of sustainable public procurement can benefit from the experiences of how private parties engage in sustainable procurement. It is argued that there are several aspects in which the practice between private actors is helpful for public procurement.The chapter starts by defining sustainable contracting as an instrument to regulate and to enforce existing laws and proceeds by focusing on the way in which this form of regulation and enforcement differs from traditional regulation by public laws in its scope, content, duration and enforcement. The core part is then devoted to analysing to what extent attempts by private actors to improve regulation and enforcement by contract to further sustainability should influence the development of sustainable public procurement. The two main aspects focused on are the specific contract design employed by private actors for sustainability clauses and the proposals in the scholarly debate for changes in contract law with a view to the capturing of this form of contracting