Press release

Pérez-Llorca analyses the key aspects of the new Public Sector Contracts Law

05/04/2018

New Law 9/2017, of 8 November on Public Sector Contracts came into force on 9 March. In light of this, and with the aim of providing information on this reform to the legal counsel of companies that regularly contract out with the public sector, Pérez-Llorca organised a seminar with high-level representatives from both the public and private sector.

The event was opened by Marina Serrano, Counsel at Pérez-Llorca and President of Unesa, and Juan Antonio Martínez Menéndez, General Director of Asset Management. They both discussed the context of the reform and highlighted the legislator’s work in adapting the regulation to the requirements of EU directives.

Vanesa Aventín, Area Manager on the Public Procurement Advisory Board, then took the floor to discuss the latest developments regarding the subjective scope of the Law and particularly focused on the inventory of public sector entities produced by the State Administration’s General Intervention Board which will make it easier to classify public entities. She also highlighted the work of the Independent Office for the Regulation and Supervision of Procurement as the new “public procurement watchdog in the style of the National Commission on Markets and Competition”.

In terms of the capacity, solvency and prohibitions of companies, Elena Veleiro, Counsel at Pérez-Llorca and State Advocate on leave of absence, addressed the reforms of the law aimed at encouraging contracting out with SMES and start-ups, the dificulties of contracting out with temporary business associations and the inclusive scope of the new Law in terms of disability issues.

Andrés P. Arche Castillo, State Advocate at the Ministry of Public Works and Transport, analysed the main developments in terms of the criteria for awarding contracts, focusing on the new spirit of the Law, which no longer considers the most economically advantageous offer but rather the offer which provides the best quality-price ratio. He also addressed the widening of the scope of the contract by means of the concept of product life cycle management.

Jesús M. Campo Campo, Director of Purchasing and Procurement at Adif, highlighted “the importance of the regulation remaining stable going forward,” then addressed the new framework for amending contracts, distinguishing between foreseen changes and unforeseen changes in the specifications, their respective quantitative limits and the new requirement to publish the changes in the contractor profile.

José Ramón de Hoces, Partner at Pérez-Llorca and State Advocate on leave of absence, underlined, due to the new wording of the Law, that contractors have the option to assign future works certificates and that the Administration must now issue a certificate when it has stayed proceedings claimed by the contractor.

Emilio Viciana Duro, Deputy Secretary of the Public Procurement Advisory Board, discussed the main changes to contracts types and analysed the main features of service concession contracts. He also highlighted that public-private partnership contracts have fallen out of use due to “minimal uptake” and because of the introduction of the partnership procedure for innovation for the awarding of contracts with a research and development (R&D) component.

However, Matilde García Duarte, Deputy Secretary of the Board of Directors and General Counsel and Asset Management Director at Aena, focused her presentation on the main difficulties of procurement for contracting authorities and entities that do not have contracting authority, clearly demonstrating the complexity of the text of the law.

Finally, Manuel Renedo Omaechevarría, member of the Central Administrative Court of Contractual Appeals, highlighted both the widening of the objective scope of application of the special appeal in procurement matters as well as the fact that it it free and optional. However, he demonstrated concern about the reform of the rule that allows Provincial Councils and cities with more than 200,000 inhabitants to compose their own public procurement courts, given that he believed that there could end up being disparities between criterias.

After hearing from the speakers, the audience were able to raise their concerns directly with the experts during an interesting round of questions. Questions were raised on the topic of the solvency and experience of entrepreneurs, the standing of the special appeal for procurement matters and the reasons why our regulation is so detailed and complex when other Member States of the EU have far simpler procurement laws. Among others, general counsels and legal counsels from private companies, as well as consultants specialised in public procurement, posed a number of questions during the conversation.

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