Brief notes on new spanish law of contracts public sector
Recently, Law 9/2017, of November 8, on Contracts of the Public Sector, has been published, transposing the Directives of the European Parliament and the Council 2014/23 / EU and 2014/24 / EU into the Spanish legal system, of February 26, 2014.
It is a law that if it came complicated to Congress now is unintelligible if it were not for the time we had to go studying it step by step and working on its future content from different areas.
The preliminary draft was approved by the Council of Ministers on April 17, 2015, the referral of the bill to the Cortes took place on November 25, 2016 and despite publication through urgent processing and attributing full legislative competence to the Commission on November 2, 2016. December, had up to 10 extensions of deadline to submit amendments: from December 14 when it ended to March 3.
It presents, however, great successes and other unfortunate questions.
Improves the current detailing to the extreme and beyond the procedure, which would be good if not for the 347 articles of the new standard (and still missing the intervention of the Senate).
A structure and a development lavish, complex, confusing, with internal remissions and contradictions (such as the now praised direct action, profile or platform advertising …), or electronic contracting that will not be understood until DA 16 and DA 17 , …)
However, the climate has been in almost total agreement between the groups. In a quasi-festive atmosphere and where the gratitude between them and a magnificent climate of political agreement, the ratification of the paper was focused on the fact that the new norm emphasizes public policies related to contracting, efficiency and prevention of corruption. And is that as noted by Mr. José Vicente Maró Bosó (GP) of the 1081 amendments of which 975 have been fully accepted or transacted.
Only the Socialist Group was critical of the suppression of the public service management contract and the new controls to which rescues or remunicipalizations will be subject (which made it abstain in the final vote). His representative has indicated «we believed that the directive did not prohibit incorporating this modality».
Among the most commented changes is article 118 that regulates minor contracts (DIRECT CONTRACTS), reducing its use to those estimated value less than 40,000 euros, when it comes to works contracts, or 15,000 euros, in the case of supply or service contracts . In addition, the standard now requires the quarterly publication of certain data of these minor contracts (which, incidentally, lacks novelty, since it was already bound by transparency regulations).
Also, the owner of today could be «DISAPPEAR» THE CONTRACTING INSTRUCTIONS « (some «rules» that each entity (public corporations, foundations …) approved to manage their hiring). This is not, however, totally true.
Yes, the regulation that is applicable to the PANAPS (contracting authorities that are not public administrations) is clearly established. For contracts not subject to harmonized regulation, the instructions in the case of contracting authorities, not Public Administrations, are to be awarded, and these contracts must be awarded by the same procedures established for those Public Administrations, although they are allowed to use any of them indiscriminately, except for the one negotiated without advertising, which can only be used, in the same cases as the aforementioned Administrations.
However, political parties and unions that become part of the subjective field will have INSTRUCTIONS … (hopefully the Senate will modify this mistake).
Labor costs must be taken into account to determine the price of the contract.
Much has been said by the subcontracting groups. Now, subcontractors will be obliged to submit electronic invoices from 5,000 euros (Article 214.5) and penalties can be applied to the non-payment. The term of payment to subcontractors will not leave place to the pacts to which they were accustomed and that caused so much delay.
But greater has been the news of the recovery, in quotes of direct action. Some time ago I was speaking on a question that now returns to the scene. Well, it will be possible that if the specifications establish it, the direct payment of the Administration to the subcontractors will be agreed (remember that in private law this civil status remained applicable).
As you can see when studying the new and modified text – as it was not included in the initial draft – the technique to regulate it is totally deficient because the same regulation that was introduced with Law 24/2011 of defense and security contracts continues to be contemplated: a Although now it is expressly alluded to that the payment of the contractor can be seized: «For the payment of the obligations contracted by the contractor with the subcontractors and suppliers referred to the execution of the contract.»
Bosó, José Vicente (GP) said in his appearance that the recovery of direct action places Spain «at the forefront of Europe». In my opinion, the relevant thing, as advice, to avoid the past problems will be to regulate how and in what conditions should be carried out the payment. But if something was discussed in the parliamentary session was social criteria, the possible reservation of lots to CIS and CEES and the third sector.
Now Article 1 of the LCSP will incorporate this paragraph «In all public procurement will be incorporated in a transversal and mandatory social and environmental criteria as long as it is related to the object of the contract, in the conviction that its inclusion provides a better value for money in the contractual provision, as well as greater and better efficiency in the use of public funds. It will also facilitate access to public procurement of small and medium enterprises, as well as social economy companies».
Similarly, now Article 99, when dealing with the subject of the contract, states that» In particular, this will be defined way in those contracts in which it is considered that technological, social or environmental innovations can be incorporated that improve the efficiency and sustainability of the goods, works or services that are contracted «.
There has been a significant change regarding the lots worthy of mention. Now, as long as the nature or object of the contract allows it, provision must be made for independent realization.
In relation to control, in addition to the mediatic INDEPENDENT OFFICE OF ORGANIZATION AND SUPERVISION OF CONTRACTING, the extension of the scope of special appeal is very important. : works contracts: estimated value> 3,000,000 euros contracts of supplies and services: 100,0000 euros. special administrative contracts: 100,000 euros and those where its value can not be fixed. The objective scope is also extended to include rescues of concessions within the object.
Another issue that has been praised by the legislator has been the suppression of the importance of the price criterion and its replacement by the concept of better value for money.
The article 145 that is now in addition to those that have required a very interesting 145.bis has given a twist to the initial drafting. In relation to the technical solvency is now excepted to start-ups (with less than 5 years since its creation) to accredit it with previous experience, although only for non-SARA contracts (which seems to be the case), allowing it to be accredited with the rest of the new art. 90.
An important exception has now been introduced whereby the price can be the only criterion and the «awarding of contracts will be carried out using a plurality of award criteria based on the best value for money». «The best value for money will be evaluated according to economic and qualitative criteria»). In addition it is necessary to assess the quality or intellectual value in service contracts.
Brussels, December 8, 2017
Fco. Javier Vázquez Matilla