Harnessing Public Procurement for the Green Transition

Spain

Framework, scope, action-plans

At the national level, the Ecological Public Procurement Plan 2018-2025 (Order PCI/86/2019) constitutes the strategic framework for GPP, and it applies to the General State Administration, its autonomous bodies, and the managing entities of Social Security system. The Plan is managed by the Interministerial Commission on the use of ecological criteria in public procurement, under the leadership of the Ministry for the Ecological Transition and the Demographic Challenge and the Ministry of Finance. The Interministerial Commission ensures the co-ordination of the National Government, its public bodies and the Social Security management bodies in the incorporation and use of green criteria in public procurement. There are also many state bodies responsible for the management of the Green Public Procurement Plan in its different phases (supervision, review, monitoring, training) - the Interministerial Commission is involved to a greater or lesser extent in all of them. For the subnational level, the national legal framework on public procurement (Act 9/2017, of November 8, on Public Sector Contracts or LSCP) allows subnational entities to develop their own regional public procurement strategies, which can include GPP. Some Autonomous Communities are now approving their own strategies, which also cover green public procurement.

The main objective of the Ecological Public Procurement Plan 2018-2025 is to ensure a balanced approach between environmental performance and economic efficiency in public tenders. For this reason, it encourages contracting authorities to include environmental requirements in procurement, according to their needs and level of ambition, and without creating unjustified administrative burdens. The Ecological Public Procurement Plan 2018-2025 is also included in the National Integrated Energy and Climate Plan 2021-2030, which outlines the necessary measures the country to meet the country’s 2030 energy and climate targets to align with the EU commitments (Act 7/2021 on climate change and energy transition), such as reducing emissions by 40% compared to 1990s levels and increasing by 32% the share of renewable energy sources for final energy consumption.

GPP and the procurement of low-emissions and eco-friendly products are also mentioned in different sectorial regulations (e.g. circular economy, waste and soil contamination, noise pollution, wood and forests), as well as in broader national-level plans, such as the First National Air Pollution Control Programme (PNCCA) and Spain’s Recovery Transformation and Resilience Plan.

Implementation

The national legal framework on public procurement (i.e. the Act 9/2017, of November 8, on Public Sector Contracts – or LCSP - and the Royal Legislative Decree 3/2020) makes GPP mandatory, across all levels of government. More specifically, environmental considerations should be integrated across the different phases of the procurement procedure:

• As conditions for the execution of contracts (art. 202 LCSP);

• As technical specifications (art. 126.4 LCSP)

• As technical or professional solvency requirement (art. 88 to 92 and 94LCSP);

• As award criteria. Notably, GPP considerations should be integrated as qualitative criterion to better assess the relationship between quality and value for money (e.g. art. 145 LCSP);

• As criteria for abnormally low tenders (art. 149 LCSP);

• As criteria for exclusion (article 71 LCSP).

In addition to that, sectorial environmental legislation includes mandatory requirements to use GPP. For example, according to art. 22 and 31 of the Act 7/2021 on Climate Change and Energy Transition, for works contracts and work concession contracts managed by the General State Administration and its entities, at the award stage, some of the following criteria should be included: maximum energy rating, energy-saving and energy-efficiency that promote a high level of thermal insulation, renewable energy and low emissions from facilities, use of sustainable construction materials considering their useful life, measures to reduce GHG emissions and other atmospheric pollutants in the different phases of the construction process, and measures to adapt to climate change.

Another example of sectorial legislation incorporating mandatory requirements to use GPP is the Royal Decree 1055/2022 on packaging and packaging waste which states that priority will be given to replacing single-use packaging with reusable and reused packaging in the framework of public procurement contracts. In addition, it establishes that in the framework of public procurement, public administrations shall include the purchase of products in reusable and easily recyclable packaging, and/or in packaging made from recycled materials, the quality of which complies with the required technical specifications.

Furthermore, according to article 16 of the Act 7/2022 on waste and contaminated land for a circular economy, Public Administrations shall include, in the framework of public procurement, the use of products of high durability, reusable, repairable or easily recyclable materials, as well as products made from waste materials or by-products, the quality of which complies with the required technical specifications. In this sense, the purchase of products with the European Union Ecolabel will be encouraged.

Moreover, there is an extensive number of actions and initiatives undertaken at the sub-national level to promote and guide GPP implementation. These include binding and non-binding regulations, guidance documents and instructions, supportive tools for contracting authorities. For example:

• Practical Guide for the inclusion of social and environmental responsibility clauses in administrative contracting in the Principality of Asturias and its public sector (2018);

• Recommendation 2/2018 of the Public Procurement Advisory Board. Purpose: Environmental Clauses in Public Procurement (2018). Autonomous Community of the Basque Country;

• Green Public Procurement Guidelines (2020). Autonomous Community of Aragon;

• Green Guide. Environmental measures in public contracting in the field of building (2020). Autonomous Community of Valencia;

• Guide: Common mistakes in the introduction of environmental criteria in public procurement (2020). Autonomous Community of the Basque Country;

• Circular Shopping Guide in Andalusia. Manual on the application of circularity criteria in public procurement and its status in Andalusia (2021).

Measurement and impact

Contracting authorities are not required to report specifically on GPP as part of their annual public procurement plans. However, contracting authorities are obligated to publish all information pertaining to their contracting activities on the Public Procurement Platform or a regional equivalent. This involves consolidating information and documents related to contracting activities to ensure transparency and accessibility. Additionally, the mandatory publication of tender documents and similar materials, along with tender notices, is required, including the use of GPP criteria. Finally, contracting authorities must register essential contract data, including relevant details on awarded contracts with the Public Procurement Register or its regional equivalent, which are linked to the e-Procurement system.

In terms of impact measurement, this varies across procurement categories. For some categories, such as cars or electricity, there is a standardised methodology to assess carbon footprint, but for other methodological approaches and data are not available. Nevertheless, the Ministry for the Ecological Transition and the Demographic Challenge provides on it web page information and tools for calculating organisational carbon footprints. Moreover, the Ministry provides reference emission factors for some procurement categories, so that the evaluation of CO₂ emissions savings is feasible.

At the organisational level, many municipalities are calculating their carbon footprint on a voluntary basis. This is also the case of some Ministries. For example, the Ministry for the Ecological Transition and the Demographic Challenge is calculating its carbon footprint since 2010.

Recent developments

With the scope to improve co-ordination between national and sub-national public procurement strategies and support the compliance with the national legal framework, a National Public Procurement Strategy (NPPS) was approved, after more than 18 months of preparatory works in co-operation with the relevant stakeholders, by the Independent Office for Regulation and Supervision of Procurement (OIReScon) on the proposal of the Cooperation Committee on Public Procurement on 28 December 2022. It is published on the Public Procurement Electronic Platform. The Public Procurement Cooperation Committee on the development of the NSPP is made up of representatives of Spain's territorial administrations (national, regional and local). Its extensive work and collaborative efforts, representing Spain’s territorial administrations, played a crucial role in aligning diverse interests and concerns into the NPPS. The NPPS is binding, and covers a 4-year period, although monitoring and evaluation will take place every 2 years. The draft NPPS includes a chapter on strategic public procurement, and it also covers GPP. Notably, it identifies the main instruments to promote and enforce strategic public procurement, such as procurement plans, preliminary market consultations, life cycle cost assessment, professionalisation, creation of template documents that contracting authorities can use as a reference, monitoring and data collection. The NPPS also highlights the need to improve co-ordination of public procurement policies with other public policies.

Moreover, to foster GPP implementation and provide guidance to contracting authorities, the Ministry for the Ecological Transition and the Demographic, in co-ordination with the Ministry of Finance and Public Service, has been working on a Guide on ecological public procurement. Most importantly, the Guide will present GPP best practices and provide examples of GPP criteria that have been already endorsed by different Spanish and European courts.

The work on the Guide is still on-going and should soon be approved by the Interministerial Commission for the incorporation of ecological criteria in public procurement. Moreover, the Guide will be revised and updated as new GPP criteria are endorsed by administrative and judicial courts.

Finally, The Ministry for Ecological Transition and the Demographic Challenge has published the manual Ecoedición. A public guide of criteria and tools, with the aim of showing in a simple way the steps to follow to make an eco-edited publication that contributes to reduce the environmental impact in all its phases and processes. This action is also in line with the provisions of the Green Public Procurement Plan (2018-2025).