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The new Public Contracts Act has been published

On 9 November 2017 the Act 9/2017 of 8 November of Public Contracts was published on the Spanish Official Gazette. By virtue of the aforementioned Act, the European directives of the European Parliament and European Council of 2014/23/UE and 2014/24/UE were transposed. This regulation rules public procurement and will entry into force, in general, on 9 March 2018.

This Act introduces some relevant amendments required by European law, although it is not a new configuration of the public procurement regime. The main goals of this amendment are to modernize the regulation on public procurement in order to improve the efficiency of public spending, facilitate the participation of SMEs and potentiate the social purposes of public procurement.

The above referred general goals are achieved by, among others, the following actions:

  1. Intensification of the scope of application of the Act. Although the three levels of application (Public Administrations, Contracting Authorities, and other Public Sector bodies) are maintained, the applicable regulation for contracting authorities is specified and the effects and termination of its contracts are regulated. Likewise, political parties, unions and professional associations, as well as foundations and associations linked to the aforementioned bodies are subject to this regulation as public sector bodies.
  2. Improvement in the contract awarding. The criterion of the most advantageous offer in economic terms is replaced by the criterion of best value, introducing qualitative, environmental, social and innovative aspects.
  3. More opportunities for SMEs that may access to more contracts due to the restriction of the cases in which the public bodies can accede to the execution of services by own means, the favouring of the batch division of the contracts, and the simplification of the procedures facilitating that the fulfilment of previous requirements such as the capacity, solvency and professional or business qualification can be accredited by responsible declaration.
  4. Improvement of the defence of the tenders by extending the scope of the special appeal in public contracting matters. Said appeals can now be filed in case of works contracts, works and services concessions whose estimated value exceeds three million euro and contracts of services and supplies whose value exceeds one hundred thousand euro. The aforementioned special appeal may be filed against the bid announcements, bidding documents, contractual documents that establish the conditions that shall govern the contract, procedural acts that comply with the requirements of this Act, adjudication agreements adopted by contracting authorities, as well as contractual modifications and assignments to own means.
  5. Greater transparency. Preliminary market consultations are regulated in order to correctly prepare the bid and inform economic operators regarding the contracting plans of the corresponding body and the requirements that will be required to attend the procedure. The requirements regarding advertising in both the Official Gazettes and in the contractor profile are also increased.
  6. Improvement in adjudication procedures, including open, negotiated, competitive and restricted dialogue, and the so-called partnership for innovation procedures. Likewise, a very streamlined simplified open procedure is introduced which, due to its design, should allow the contract to be awarded within one month since the invitation to tender. The conditions for applying the negotiated procedure are also hardened, in particular, for the procedures without publicity.

In GMQ Abogados we have the appropriate team and the necessary experience in order to give comprehensive advice during all the phases of public tendering.

Department of Public Law

GMQ Abogados

 

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