Beyond the circularity checkbox: How to integrate circularity into your tender process

According to lawyers Vera Brouns and Loes Vissers, the answer does not lie in a single circularity requirement or an additional criterion in the tender procedure. “Circularity ambitions can be embedded throughout the entire procurement process, from preliminary market consultations through to the performance of the contract.”

Anyone consulting the Dutch Public Procurement Act or the European Public Procurement Directive will not find the word ‘circularity’. However, this does not mean that public procurement law leaves no room for circularity. Quite the opposite: according to Vera and Loes, contracting authorities have opportunities to incorporate circular ambitions at every stage of the procurement process.

“People often mistakenly believe that procurement rules are primarily restrictive,” Loes explains. “In fact, they offer considerable scope to encourage innovation and, consequently, circularity.”

This is particularly important because the Dutch government remains the largest purchaser of works, services and supplies in the Netherlands. The choices made in procurement procedures today largely determine which innovations will have the opportunity to develop and grow tomorrow. “The government can really set things in motion.”

Starting Early Pays Off

According to both lawyers, this process begins well before a contract or concession notice is published. Vera explains: “Circularity requirements take shape when drafting the tender documents. This is the key moment to define exactly what you expect from the successful bidder. If you are not yet sure which requirements, criteria or conditions would be proportionate and measurable, you can consider conducting a preliminary market consultation or market survey as a contracting authority.”

Such consultations are still often seen as a formal or unnecessary step before launching a procurement procedure, whereas Vera believes they offer a valuable opportunity to gather knowledge and insights from the market.

“Developments are moving incredibly fast. Think of new materials, innovative construction methods or alternative approaches to reuse. Market participants often have expertise that contracting authorities do not yet possess. Engaging with them at an early stage gives you a much clearer understanding of what is possible and how best to structure your tender.”

These discussions are intended to identify potential solutions available in the market at an early stage, helping to prevent requirements that unintentionally exclude promising initiatives. “You make use of the expertise available in the market and can tailor your tender requirements accordingly.”

According to Loes, the same flexibility can be found in technical specifications. Contracting authorities often tend to prescribe exactly what a solution should look like, unnecessarily limiting opportunities for innovation.

“You can describe in great detail which installation you want, but you can also specify the result you want to achieve. This gives suppliers the freedom to develop and propose the best solution themselves. They work with new developments every day and may come up with solutions that you, as a contracting authority, have not even considered.”

‘You make use of the expertise available in the market and can tailor your tender requirements accordingly.’

Vera encountered a similar situation in a project where a contracting authority wanted to incorporate several circularity specifications into a construction project to reduce its environmental footprint. While the intention was positive, discussions with market participants revealed that the combination of the proposed circularity specifications would actually shorten the product’s lifespan, meaning it would need to be replaced sooner.

The circular ambitions were well-intentioned, but the specifications initially envisaged by the contracting authority were not entirely suitable for this particular project and would, in fact, have been counterproductive.

“Sometimes a solution seems perfectly logical on paper, while the reality turns out to be quite different. That is precisely why it is so valuable to draw on market expertise as early as possible. If requirements prove unworkable or unrealistic in practice, this often leads to unsuccessful procurement procedures, unnecessary cost increases or legal disputes during contract performance.”

Experience Is Not a One-Size-Fits-All Solution

There are also plenty of opportunities to further integrate circularity during the selection and award stages. However, it is important to distinguish clearly between these two stages. Selection criteria look at past performance, assessing whether a candidate or bidder has the necessary experience and capabilities to carry out the contract. Award criteria, on the other hand, look ahead and assess what the bidder specifically proposes for the contract in question.

The focus is therefore not only on whether a company has experience with circular construction, but also, and more importantly, on how it translates circularity into a concrete, achievable proposal for the specific contract.

“The market is constantly evolving,” Loes explains. “If you only select companies that have already completed numerous circular projects, you may end up excluding businesses with innovative ideas or technologies. You want to encourage innovation while maintaining sufficient assurance that a supplier can successfully deliver the contract. This requires careful consideration.”

The right balance will differ from one procurement procedure to another. According to Vera and Loes, there is no one-size-fits-all approach to circular procurement. Some contracts may benefit from placing greater emphasis on circularity requirements during the selection stage, while others may be better suited to incorporating circularity into the award criteria or contract performance conditions.

“It is not about using every tool at your disposal,” Vera explains. “It is about consciously deciding in advance which choices best suit the specific challenges and objectives of the contract.”

The Role of AI in Public Procurement Processes

Another development is increasingly influencing the assessment of proposed approaches: artificial intelligence (AI). While AI can help prepare tender submissions, such as drafting plans of approach or tender documents, Vera and Loes also see new risks emerging.

“AI can make a text appear highly convincing, and as a result, submissions are becoming increasingly similar,” Vera explains. “But that does not necessarily mean the content is relevant to the contract or that a bidder can actually deliver what it promises.”

Loes emphasises the growing importance of asking for practical examples rather than simply requesting a vision or strategy. These commitments must also be incorporated into the contract to ensure that what was requested and promised in the tender submission is actually delivered. “Ultimately, it is all about implementation. If you have circularity ambitions, you also need to consider how you will monitor them throughout the contract period.”

This could include monitoring performance, making agreements on maintenance, arranging for materials to be taken back or encouraging reuse. “That way, circularity becomes an integral part of the collaboration throughout the entire project.”

Vera and Loes have noticed that market participants are becoming increasingly proactive and that discussions are beginning to change. “The days of simply ticking a box for circularity are over,” Loes explains. “The question is no longer whether contracting authorities want to procure circularly, but how to ensure that the procurement process actually delivers what has been agreed. This shift requires action not only from contracting authorities, but also from the market itself.”

According to Vera, it is important for businesses to start considering the role circularity plays within their own organisations. “The market is evolving rapidly. Companies that start developing circular solutions today will be better positioned to meet the needs of tomorrow’s contracting authorities. That makes now the ideal time to get involved.”

Both lawyers agree: “Circularity does not have to be a separate chapter in a tender. Instead, it should be a common thread running through the entire procurement process. By making the right choices at the right stages, you create opportunities for solutions that are not only more sustainable, but ultimately also better suited to the challenges contracting authorities face.”