# Environmental Criteria in the Spanish Public Works Procurement Process
## 2 Background
### Regulatory Framework in the European Union and Spain  
The award of a contract by an administration depends on a number of endpoints. In the European Union and in Spain, Directive 2004/18/EC [57] and Royal Decree 3/2011 [58] respectively, regulate public procurement and describe the tendering criteria that allow the contracting authority to select the Economically Most Advantageous Tender (EMAT). These criteria include price, quality technical merit, aesthetics and functional characteristics, environmental characteristics, running costs, profitability, customer service, technical assistance, delivery date and execution time. The EMAT, based on several criteria, is traditionally called the procedure contest. The bid is based solely on a single criterion, which inevitably is the price, and the procedure is traditionally known as auction. The evaluation criteria used can be divided into two groups: the criteria evaluated by formulae and those evaluated by value judgments. For the former, various predetermined formulae can be employed, including aspects such as price, delivery time, and the necessary labour for the project. However, the scores for the criteria assessed by value judgments will always contain some subjective bias by the individual who performs the evaluation. Environmental characteristics can be assessed by value judgements or by formulae, as when data are available from a Life Cycle Analysis (LCA). The environmental criteria are regarded as a necessary justification that relates the stipulated requirements to their importance from an environmentally friendly point of view [25]. The European Supreme Tribunal of Justice (ESTJ) has ruled that environmental criteria, emissions and noise, for example, must be clearly specified and measurable. This means general and unmeasurable environmental criteria need not be considered. This aims to make the tendering process transparent and equal for everybody [25]. In its 1998 report [59], the European Commission indicated that introducing the environmental aspect into tendering should involve financial advantages for public administrations. The ESTJ established that the environmental criteria did not necessarily have to include an economic dimension [60]. In 2003, the European Commission Report COM 2003/302 [61], marked as one of the targets for environmental improvement, stated that both public and private consumers should be in possession of the maximum information available when selecting a product. One of the means of achieving this objective in the public sector was introducing environmental considerations into public procurement. The possibility of using environmental aspects in Spanish public procurement already existed before the creation of European Directive 2004/18/CE. In the third ruling of Law 11/1997 dealing with Containers and Container Residue [62], public organizations were obliged to promote the use of reusable and recyclable materials in contracting public works and provisions. As a consequence of this law, the Ministry of Environment issued an Order on 14 October 1997, specifying the criteria to be included in the environmental evaluations, in the particular administrative tenders applicable in contracts drawn up by the Ministry of Environment [63]. For the other Spanish administrations, the Law 48/1999 introduced environmental criteria into tenders in Spain, modifying their initial interpretation in accordance with the ESTJ ruling. One of the criteria used in the Spanish public procurement was the ISO 14000 Environmental Management System Certification, but such the Advisory Board on State Administrative Contracting (ABSAC) stated, it is a criterion of technical solvency and not as an objective criterion for the adjudication of the contract [64]. In the European Union, parallel regulatory actions have been enacted to promote the acquisition of environmentally friendly products, including Directive 2002/91/CE [65] and Directive 2010/31/UE [66], obliging all buildings, for both residential uses and others, to fulfil the energy efficiency requirements.