Accessing public procurement procedures has never been, and continues not to be, an easy path for entities of the Social and Solidarity Economy (ESS). We come from a model where priority has been given to the best value-for-money relationship, in which the social economy has had limited opportunities to contribute. With the incorporation of social responsibility criteria into public procurement procedures by the European Parliament in 2014 (Directives 2014/24/EU and 2014/23/EU), a new scenario emerged. In this scenario, social economy entities became valuable allies, as these directives introduced social, environmental, and ethical criteria for awarding and executing contracts. In this way, public spending is not only directed toward meeting administrative and management needs regarding services and infrastructure but also contributes to broader goals of sustainable and inclusive development.
At the national level, it was with the Public Sector Contracts Law 9/2017 (LCSP), enacted on November 8th, that these European directives were transposed into Spanish law. This law explicitly recognized public procurement as a tool to promote social and environmental policies. Article 1.3 states:
“In all public procurement, social and environmental criteria will be incorporated transversally and mandatorily, provided that they relate to the object of the contract, based on the belief that their inclusion provides a better quality-price ratio in the contractual provision, as well as greater and better efficiency in the use of public funds. Likewise, access to public procurement for small and medium-sized enterprises, as well as social economy enterprises, will be facilitated.”
Although prior to the law’s enactment, there were several important plans and initiatives, both at the national and regional levels, which set precedents and established a foundation of commitment, it was with Law 9/2017 that these practices obtained a defined and harmonized legal framework at the national level.
In this context, we understand social responsibility clauses in public procurement as provisions included in tenders with the objective of promoting socially responsible values and practices among companies bidding for contracts with public administrations.
Considering that the level of public procurement spending in Spain in 2023 reached 11.55% of GDP and 24.87% of total public spending, the inclusion of social responsibility criteria in tender documents has direct implications for market behavior. This level of expenditure sets social and environmental standards that, if invested appropriately, can drive a balanced shift toward a more sustainable economy.
From this perspective, what we can observe is that the public procurement paradigm, where the price-quality-efficiency relationship has been prioritized, is changing. One of the best practices worth mentioning is the Mayoral Decree S1/D/2017-1271, issued on April 24th, 2017, by Barcelona City Council. This decree approves the guidelines for social and environmental public procurement, which provide directions for integrating social, environmental, ethical, and innovation criteria into municipal procurement processes. In doing so, it assists both the civil servants responsible for tenders and the companies participating in procurement processes to understand and apply these criteria, fostering a fairer, more inclusive, and sustainable public market.
Regarding verification and compliance systems, there is still much room for improvement. It is clear that the administration’s challenge is not easy. On one hand, it must handle the design, publication, and awarding of tenders, which often requires specific advice and support to draft content within very tight deadlines, adapting and condensing texts with sometimes inconsistent results. On the other hand, there is the challenge of incorporating and implementing verification and compliance mechanisms. ESS companies can make an effort to train and acquire the necessary tools to meet the deadlines for submissions and executions, but without a reliable verification system, confidence in the public procurement system can be undermined.
Basically, these criteria can be broken down into five stages: First, in defining the contract’s object, where the administration can establish that the contract’s purpose includes requirements or characteristics related to social responsibility, such as promoting gender equality, environmental sustainability, or using recycled materials. Second, in technical specifications, which can include specific requirements such as job quality, wage equality, or fair trade, among others. Third, they may appear as awarding criteria, where a specific score is linked to companies meeting these criteria. Fourth, as special execution conditions where the administration can set specific requirements for contract execution, such as employing people with functional diversity, reducing emissions during service delivery, or promoting local employment. Finally, a fifth stage as a tiebreaker criterion, where, if included in the tender documents, preference is given to companies that meet these criteria.
It is clear that the transition from price as the sole criterion to a combination of quality-price has been an important step toward modern public procurement. However, the question remains as to what balance should exist between the weight of price and other criteria. Those tenders that have begun to redefine the role of price in tender documents allocate around 50% of the score to it, allowing for a more balanced inclusion of other criteria. Nevertheless, there is still a long way to go before price becomes just another criterion, with a more balanced and proportional score that gives greater importance to quality, innovation, sustainability, and social criteria.
At Ambtu, we aim to promote the participation of ESS entities in public procurement procedures, offering guidance to improve their access and presentation for a tender. We are aware that for entities that have never done this before, incorporating these mechanisms and dynamics is not easy. However, we believe that with prior planning and preparation, these social responsibility criteria can become valuable allies for the sector.
For this model of public procurement, which incorporates social criteria in tender documents, to continue growing and have real and transformative effects on our society, it is necessary for the administration to play its part. At the same time, entities must embrace their proactive role, training and acquiring the tools needed to meet this challenge.
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