On November 8 last year, after a long parliamentary procedure, despite being qualified at the first moment of urgency, and a considerable delay in its publication, appeared in the Official Bulletin of the State the new Law 9/2017, of 8 November , Public Sector Contracts-LCSP 2017-(EDL 2017/226876). Ten years Had passed almost fair (exactly 10 years and 9 days) since the publication of Law 30/2007, of 30 October, of Public Sector Contracts (EDL 2007/175022), which, despite having been in force for less than four years, had suffered so many Modifications, which caused the publication in 2011 (again in November) of its recast Text-TRLCSP 2011-, approved by RDLeg 3/2011 (EDL 2011/252769), also widely modified.
The new Law came to transpose two Directives to the Spanish legal system (2014/23/UE; EDL 2014/35496, and 2014/24/UE; EDL 2014/35497) whose entry into force in April 2016, with the resulting vertical upward direct effect, should have caused changes in government procurement. However, these changes had not been as extensive as would have been desirable and the lack of transposition was creating a remarkable insecurity that was expected to be corrected with the entry into force of the new standard. In Addition, the lack of transposition of these directives placed the country in a punishable situation.
At the time of its publication, on the one hand, an apparent exit from the economic crisis was beginning, which could allow for changes in contract awards by providing greater flexibility when calculating costs, and on the other hand it was necessary To pay attention to the ‘ Europe 2020 Strategy ‘, where public procurement is destined to play a key role as one of the instruments to be used to achieve ‘ intelligent, sustainable and inclusive growth, guaranteeing the same Time a use with more economic rationality of public funds. ” It Is Therefore the opportune time for the strategic nature of public procurement to enter the scene.
Therefore, it was to expect a different law in its objectives and in the way of achieving them, and since its preamble, the LCSP 2017 lets see that New times are coming for the public procurement, in which it loses importance the economic concept that had been Prevalent during the economic crisis in favour of the concept of better quality-price, and where the own concept of quality is widened including in the same aspects related to the adequate working and environmental conditions and even of innovation. The LCSP 2017 redefines the “quality” in such a way that the concept includes the quality of the benefits themselves and the environmental and social quality associated with these benefits, as well as the possible innovative scope of the same or the way to obtain them.
To fulfil this objective, a change of culture is necessary, which avoids formalism and encourages an interpretation and application of the LCSP 2017 according to the spirit of the norm, and which facilitates that the instruments that the same law provides are used flexibly and With simple use, allow the public authorities to award contracts in a transparent way according to the best value for money, ending with the practice of buying taking into account only the lowest price.
In this context, the LCSP 2017 presents a new scenario that must allow to overcome the traditional inertias to make the hiring a strategic tool, putting in value other aspects that can act as an engine for the achievement of a strategy Socially and environmentally responsible, enabling or even encouraging innovation.
After one year of its publication and eight months of its entry into force, it is possible to analyse some aspects according to the impact they have had on the public procurement itself.
It is Still early to appreciate the concrete effects of strategic recruitment, both social and environmental or innovation-possibly for that to happen years-but if it is possible to appreciate the changes in trends in the way in which the Works, supplies and services, which should change the mindset of the administration itself in these respects. Taking into account that the public administration is by far the first buyer of the country, both of works and of supplies and services, assuming the public procurement between 14 and 18% of the GDP, the change of tendency and mindset and of the way of buying of the admin Istración will, without a doubt, have a lever effect on the successful companies, which will have to adapt their social and environmental practices to the requirements of the administrations if they want to be able to participate in the procedures, and to commit With these aspects if they want to be awarded-because they should also be used as criteria for adjudication.
If the control of the execution of contracts also works, the defaulting companies of the above aspects may be punished and may even be prohibited from hiring with the administration, and should be able to be measured within a period of Not too long time, the real impact of strategic hiring. However, and as will be seen later, the control of the execution of the contracts remains a pending subject and is perhaps where the greater resistances are appreciated by the administrations and companies.
Taking into account that the preambles of the laws or their explanatory statements are part of the norm itself, constituting the memory of the text, that is to say, that they present the norm, its structure and above all its general principles or objectives determining the parameters For the correct interpretation of the same and that in the particular case of the LCSP 2017 its preamble exposes the main structural and transversal changes in the matter, it is appropriate to leave it to analyze whether the expected changes have occurred, if the Impact has been the expected or whether, on the contrary, resistances or interpretations have appeared that impede the correct application of the standard or that it produces the desired effects.
The Preamble of the LCSP 2017 declares in the first place:
“The objectives that inspire the regulation contained in this Law are, firstly, to achieve greater transparency in public procurement, and secondly to achieve better value for money.”
Therefore, we have two first objectives:
Best Value for money
The preamble to the LCSP 2017 Continues:
We Also welcome the need to simplify the procedures and thus to impose a lesser bureaucracy for bidders and better access for SMES. The bidding process should be simpler, with the idea of reducing the administrative burdens of all the economic operators involved in this area, thus benefiting both the tenderers and the contracting authorities. “
De manera no tan clara, pero también parece imponerse un tercer objetivo
Simplificar trámites y disminuir la burocracia.
Y más adelante aclara:
The legal system of public procurement established by this LAW seeks to clarify the current rules, in the interests of greater legal certainty and seeks to ensure that public procurement is used as a tool to implement policies both European as nationals in social, environmental, innovation and development, promotion of SMES, and defence of competition. All These issues are constituted as true objectives of the LAW, chasing each other at all times the efficiency in public spending and respect for the principles of equal treatment, non-discrimination, transparency, proportionality and integrity. “
As you can see, the concept of strategic procurement is introduced (the use of the law as an instrument for the implementation of specific policies) and other objectives appear:
Clarifying the Rules
Social and environmental Recruitment
Facilities for SMES and defence of competition
And the general principles are enunciated:
And Finally, the preamble of the LCSP 2017 indicates that the law makes a decisive commitment to the electronic contracting “Establishing as obligatory in the terms indicated in it, since its entry into force, anticipating, therefore, the deadlines envisaged at Community level”
Therefore, another declared objective is the generalization of the use of electronic contracting.
III. Developments in the general principles: the principle of integrity
The general principles or guiding principles of public procurement are those aspects that inform the whole of the standard, in a way that responds to doubts about the application of the LCSP 2017. That Is to say, It must go back to the principles when there are doubts about any end that is not resolved with the established in the text itself or to decide on the relevance of collateral aspects. No clause, although formally justified in accordance with the LCSP 2017, shall be deemed to be in accordance with it if it contradicts these principles, which are:
Freedom of access to tenders.
Publicity and transparency of procedures,
Non-discrimination and equal treatment between tenderers
The first three remain the same as in the previous standard and their practical expression varies according to the changes included along the expository part and that will be seen later, but the last one (the principle of integrity) has appeared for the first time in the LCSP 2017 .
It is Not a difficult principle to understand, we all know what it means, it is a principle that speaks of honesty and probity, but it is possibly the most difficult to define and, as for its practical application, in a concrete way, it only seems supported by the obligation to adopt Measures to combat fraud, favoritism and corruption.
Indeed, art. 64 establishes the obligation of contracting authorities to take measures to combat “Fraud, favoritism and corruption, and prevent, detect and effectively resolve conflicts of interest in order to avoid any distortion of competition and ensure transparency in the procedure and equal treatment of all Candidates and tenderers. ” That Is to say, the principle of integrity is used as reinforcement of other principles.
In Addition, in the case of conflicts of interest, a curious expression is used in the law:”Any situation in which the staff at the service of the contracting authority, who also participates in the development of the bidding procedure or can influence the outcome thereof, has directly or indirectly a financial, economic or personal interest That might seem to compromise their impartiality and independence in the context of the bidding procedure. ”
That Is, that there is no need for a real and proven compromise, simply the mere assumption of a compromise appearance must make the appropriate measures be taken.
Such a strict and scrupulous regulation with conflicts of interest should have led to a multitude of actions aimed at their fulfilment. However, although ethical codes and some measures are beginning to appear-declaration of conflicts of interest of the members of the Hiring Tables, for example-it does not seem to have caused a noteworthy impact. The feeling is that those who act with integrity in a personal and habitual manner will do so in their practices within hiring procedures and those who don’t simply don’t care.
It Would Be important to begin to establish protocols of action that ensure clean conduct in all respects, without the appreciation of conflicts of interest subjectively dependent on the will of the person concerned or those who might have Knowledge of them. One form could be the adoption of compliance programmes (Compliance), a more widespread practice in the private sector, but which is being discussed in the public sector, provided that these programmes are appropriate to the reality of the specific recruitment And do not remain in mere possibilities.
The administration cannot, in any way, ignore the extraordinary need for cleanliness in exercising its powers that society currently demands, nor the fact that corruption in public procurement has appeared in a multiplicity of Occasions in the most media cases in this sense, to give the image (completely false, on the other hand) that most of the hiring procedures are rigged in one way or another.
It Is necessary that the future regulatory development of the LCSP 2017 will affect the practical application of these aspects, clearly indicating the appropriate measures so that it could move further in determining the cases where a mere suspicion of appearance of Conflict of interest, as article 64 says, should be considered worrisome and in the manner of acting in these cases. These good practices cannot be left at the will of each contracting authority, a regulation is necessary, not on the definition of conflict of interests, they are already clear enough, rather on the form that the measures have to take and the possible disciplinary consequences of not taking them.
IV. What has not been achieved
A-Use of the life cycle cost
Despite the potential of this concept, it is not being used at all. When analyzing the causes, the first thing that draws the attention is that the LCSP 2017 does not say how to calculate the cost of the life cycle (CCV). It Is possible, and certainly would be desirable, the existence of a European Union standard that dictates instructions in this respect, in which case it will be obligatory to apply, but at this time the only thing that is counted is with the established in the LCSP 2017 whose art. 148.3 in Should be included in the sheets:
The data to be facilitated by bidders in their economic offer to calculate the ‘ life-cycle cost ‘
The methodology to be used to determine it based on such data
The method of valuation of non-traditional cost components-that is to say those imputed to environmental externalities-which will always be based on objectively verifiable and non-discriminatory criteria, will be accessible to all stakeholders and It will require information that can be facilitated with a reasonable effort on the part of the companies.
It is Not an easy task for contracting bodies: life-cycle costs include those that are traditional, economically measurable and assignable to the contract (production, research and development, transport, use, maintenance and disposal At the end of the useful life) and, added by the LCSP 2017, there are intangible costs attributable to external environmental factors (pollution caused by the extraction of the raw materials used in the product or caused by the product itself during its Operation or by its manufacture or by its disposal or recycling, provided that its monetary value can be determined and verified. However, since it is not acceptable for the tenderer to impose the costs which, in his view, are assignable costs to the CCV and attributable to the contract and the contracting authority needs to be able to compare the different proposals submitted to decide, based on objective criteria Presets, which of them is the most advantageous, it is necessary the establishment of rules of play that must be established in the sheets and that will link to all the involved ones.
In this regard, as has already been said, neither LCSP 2017 nor any European Union or regulatory norms at the national level, provide data or determine methods that may serve as a guide to the contracting authority to include the information indicated in the pun The above-mentioned TOS, and which must, in any case, ensure that contracts are based on objective criteria which ensure respect for the principles of transparency, non-discrimination and equal treatment, as well as competition between Bidders so that the best offer is awarded.
The lack of standards and methods that has been indicated, makes the CCV is presented as an intangible concept for those who design the hiring procedures, which are also facing numerous changes in their way of working, so this aspect, with a huge Potential, both for the promotion of strategic procurement (the CCV can include the environmental aspects that have already been mentioned, but also aspects related to fair trade or those relating to the costs of research and development of a solution New), and simplification of the procedures (a criterion of adjudication, one, would allow the award to the best offer taking into account multiple aspects of it, not only the price), as of transparency and objectivity, is not being Employed at all in the hiring procedures.
There is much interest in the CCV, many works have been written-this same author has written some-but it does not get its practical application. You know it’s the future, but you can’t find a way to get to it. It is possible to urgently require the approval and publication of standardized methods for calculating the CCV, if they do not arrive from Europe, by the Spanish authorities. I Am firmly convinced that you are missing a huge opportunity.
B. The functioning of the collegiate bodies responsible for the Governance
The Preamble of the LCSP 2017 announces that in its Book IV it establishes “An ambitious scheme of three collegiate bodies at the state level with the double objective of complying with the governance obligations established by the Community Directives and of combating irregularities in the application of the legislation on Public procurement “
The State Public Procurement Consultative Board (JCCPE) with all the functions of the Advisory Board up to that time, with the possibility of providing access to the private sector and the additional obligation to prepare the reports of the entire recruitment of the sector The public to be sent to the European Union,
The Committee on Cooperation in the field of public procurement (CCCP), within the JCCPE, which must assume the function of creating a space for coordinating the recruitment of the entire Pubic Sector and,
With full organic and functional independence, the Independent Office of Regulation and Supervision of Recruitment (OIRSC), which must ensure the correct application of the rules. It Is The only organ of his opinion or instructions are going to be obligatory, the only one that has among its functions the transfer of the acts constituting of offence that could know to the Prosecutor or the competent judicial organs, and which will approve the Strategy National Public Procurement, binding for the entire Public Sector, which should develop the CCCP.
This system of governance, which entered into force the day after the publication of the LCSP 2017, has not had the desired impact on public procurement. The necessary regulatory developments have not been published, and the OIRSC vowels have not yet been named.
The CCCP is not endowed with means, having to use those of the JCCPE itself, but of multiple functions of coordination and supervision, in particular those relating to the supervision of the Public Sector Procurement Platform and the Official Registration of bidders. and Classified Companies of the State, which have had to assume, in both cases, an overhead of tasks starting from the entry into force of the LCSP 2017, which is causing problems to both, as will be seen later.
The OIRSC acquires great importance but has not been able to begin the enormous task that is entrusted because, in addition to not having the regulation, only has been able to appoint to its President-Maria Jose Santiago Fernandez, an expert of great prestige that until that moment He served as President of the Administrative Tribunal of Contractual Resources of the Junta de Andalucía. The process of appointment of the vowels has had to restart after the remodeling produced in the Ministry of Finance and Public Service, which were published in the BOE on May 5, 2018, and also included the changes necessary for enlargement of functions that are granted to the JCCPE. This process will not end before the beginning of December.
The failure to create a coordination space in which an agreement on the interpretation of the precepts of the LCSP 2017, which was known almost from the outset, would cause more problems, is particularly shocking. A paradigmatic case is that of the lower recruitment, on which almost all the existing consultative bodies have been pronounced, both the JCCPE and the autonomic ones, but without a complete coincidence between two of them and in several aspects with Solutions that interpret the standard in the opposite way or in two or three different ways.
It Is clear to all that it is necessary to unify the interpretation of the hiring rules so that they are understood and applied in the same way throughout the Spanish state. What is happening right now causes enormous legal uncertainty to managers, companies, and contract control in their various phases. It Is necessary, given the impact of public procurement, to publish the National Strategy set out in LCSP 2017, and for this it is necessary for these three collegiate bodies to function as planned. After one year of the entry into force of the precepts regulating them, there is still no anticipation of when they will be able to begin to fulfil their functions in full. This aspect should have been treated with special care and a special diligence, given the complexity of the LCSP 2017, the new aspects that it included and the importance of public procurement, both at the national and the European Union level.
A consequence of the failure in the governance of recruitment has been the breach of art. 334.7 of the own LCSP 2017: “The first Strategy shall be approved by the Independent Office for the Regulation and Supervision of Recruitment within nine months of the publication of this Act in the” Official State Gazette “. “The first Strategy shall be approved by the Independent Office for the Regulation and Supervision of Recruitment within nine months of the publication of this Act in the” Official State Gazette “.
C. Control of the execution of contracts
Like all its predecessors, the LCSP 2017 focuses its efforts on the bidding phase, mainly in the elaboration of spreads and seems to assume that the execution of contracts will be produced automatically in the manner regulated in them and also according With the content of the bids of the companies that are awarded. However, it is quite obvious that sometimes it does not happen that way. For these cases the regulation contained in the LCSP 2017 focuses on the imposition of penalties, the resolution of contracts and the inclusion of the contractor in contract prohibitions. But the control of compliance in itinere (on the way from the award to the full benefit of the contract object) has only been tried to regulate with two aspects: the figure of the Person in Charge of the Contract, which is not fulfilling its function so it will be indicated in The following point and, in the event that the successful tenderer had been incurs in a possible abnormal or disproportionate value, the establishment of mechanisms to ensure the correct benefit.
If we all take it for granted that recruitment is not an end in itself, let alone a ritual to fulfil, empty of all content, but an instrument for the administrations to meet the needs that have appeared, always related to their public purposes, the Control of the execution of the contract, applying the corresponding corrective measures if necessary, is the great subject pending.
All the power, the whole possibility of influence of the public procurement in the implantation of policies (social, environmental, of innovation or any other that consider pertinent) is diluted if, after the procedure of tendering and Adjudication and before the termination of contracts the correct fulfillment is not monitored. The best offer on paper should be the best offer in practice or the whole procedure will have failed.
D-Responsible For the contract
This figure was considered as optional in Law 30/2007 and in its consolidated Text (it was indicated that the contracting bodies “may designate”). Hardly any appointments were produced. In the LCSP 2017 appears To be set as mandatory; However, there has been some controversy about this, mainly because of the drafting of the standard itself.
Art. 62 LCSP 2017 is, in appearance, quite clear: “Irrespective of the unit responsible for the regular follow-up and execution of the contract contained in the sheets, the contracting authorities shall designate a contract officer”, however, art. 194, concerning the damages and imposition of penalties, it indicates that the penalties will be imposed by agreement of the contracting authority, adopted on the proposal of the person in charge of the contract “if it had been designated”; Later, in art. 195, the doubts disappear again and it is stated that “The person in charge of the contract will issue a report where it is determined whether the delay was produced for reasons attributable to the contractor”; Finally, in article 311, it is again stated that service contracts will be carried out in accordance with the instructions given by the person in charge of the contract “in the cases in which he has been designated”.
The controversy is meaningless. The wording of art. 62 has changed since the “may designate” (art. 52 TRLCSP 2011) to “shall designate”, making a free-readiness for the contracting authority change to a clearly established obligation. It is Also completely new the disposition contained in art. 195, also imperative and without leaving any doubt. However, art. 194 is a literal copy of points 7 and 8 of article 212 TRLCSP 2011. As regards the provisions of article 311, it only seems to include a safeguard so that, in the service contracts, even if it had not been appointed responsible for the contract, that is to say, even if the provisions of the standard were not complied with, the services Dependents of the contracting authority can give the appropriate instructions.
The compulsory appointment of the person responsible for the contract cannot be questioned. Your chance for execution control, either. Any other interpretation cannot obey more than an excuse for not complying with a legal precept, that the infringing body finds difficult for any reason (usually a lack of human means is claimed, although considering that it can be also Externally, this allegation is not sustained.
It Is true that, for certain agencies, it may be difficult to appoint a person responsible for each contract, but it is possible to create quality units in recruitment, with staff trained in administrative contracting and based on the award -Specifications, contract and offer-check the concrete execution and can count, if necessary, with the advice of the proponent unit that has configured the benefit from a technical point of view.
It Is Essential-in addition to compulsory, according to LCSP 2017-that the contractors are named, with the authority to dictate compliance instructions, that they keep track of the execution in all respects, including some Difficult to verify by the units that do the daily monitoring (for example, those relating to the special conditions of execution of social or environmental nature, which do not influence the benefits themselves and require a check specific), and they can dictate directions from a farther distance, not from within the daily fight with execution. It Is for this reason that the legislator has established that the person in charge of the contract must be appointed “irrespective of the unit responsible for the regular follow-up and execution of the contract” should interpret independence in two ways: must be independent of The same and cannot replace that unit.
E)Specific Mechanisms for the case of a successful tenderer who would have been in the presumption of abnormality
Article 149 LCSP 2017 establishes in paragraph 7 that, where an undertaking whose offer has been incurs in presumption of abnormality would eventually have been awarded the contract, the contracting authority shall establish the appropriate mechanisms for To carry out a thorough follow-up of the execution of the contract, with the aim of guaranteeing the correct execution of the agreement without a decrease in the quality of the benefits.
Nothing else is indicated. Once the obligation is established it does not indicate who (the person in charge of the contract, for example) will have to do the detailed follow-up, and it is completely at the discretion of the contracting authority to decide what should be understood by an appropriate mechanism and by a Detailed follow-up.
In A law like this, a law-regulation we could say, it misses a greater concretion in this regard. It Still cannot be appreciated if this general arrangement has any effect, since the first contracts that were formalized after the entry into force of the LCSP 2017 were, for the most part, from the months of June and July.
F.)Official Register of tenderers and Classified Companies in the Public Sector
The Official Register of tenderers and Classified Companies of the Public Sector (ROLECSP), regulated in the arts. 337 and successive LCSP 2017 has the function “the inscription of the data and circumstances that are relevant to certify the conditions of aptitude of the entrepreneurs to contract with the Public Administrations and other organizations and entities of the sector Public, including the faculties of its representatives and proxies, as well as the accreditation of all this before any contracting authority of the public sector. “
The companies and self-employed can register in the ROLECSP the data corresponding to their personality and capacity to work, in the case of legal persons, those relating to the extension of the faculties of Representatives or proxies with capacity to act on their behalf and to oblige it contractually, those relating to professional authorisations and qualifications, those relating to economic and financial solvency and (independently) their classification, if any. The recorded data will have an indefinite validity as long as the conditions and circumstances that are reflected in them remain. The prohibitions to contract will Also be registered in the same.
The Certificate issued by the ROLECSP accredits against all the contracting authorities of the public sector, in accordance with it reflected, and unless otherwise proven, the conditions of aptitude of the employer.
This register and those that could enable the Autonomous Communities, which must be interconnected, should serve to avoid the submission of documentation of the registered bidders, facilitating that the contracting authorities could verify the Capacity to act, to contract, the non-incursion into prohibitions of hiring, the solvency and the professional qualification of the companies that would have been selected as successful bidders, thus producing an effective reduction of the bureaucracy and Simplification of the procedures for both the companies and the contracting authorities,
A further abundance, in order to be able to participate in the open procedure regulated in article 159, the potential bidders must be registered in the ROLECSP, or, where appropriate, in the Official Register of the corresponding Autonomous Community, at the final date of Submission of tenders, provided that the concurrence is not limited. This Obligation entered into force within 10 months of the publication of the LCSP 2017 in the Official Gazette of the State. I mean, September 9th, 2018.
Despite the postponement of its entry into force (6 months after the general entry into force of the law), the ROLECSP has been unable to cope with increased demand for registration by companies. At the end of October 2018, there were delays of up to seven months, therefore, even the diligent bidders who had tried the inscription with a period exceeding the three months-past which would be understood rejected by administrative silence- They could not participate in these procedures.
The Consultative Board for Administrative Contracting of the Community of Aragon has stated that this is a legal obligation, with respect to which the contracting authorities have no decision. It Also clarifies that “The final subparagraph of article 159.4. A. That establishes-provided that the concurrence is not limited-should not be interpreted as a power or in the sense that this registration is not compulsory.”
However, the Recommendation of the Public Procurement Advisory Board of the State to Procurement Bodies “in connection with the application of the registration requirement in the ROLECE of article 159 of Law 9/2017 has been published on 24 September 2018. , of 8 November, of Public Sector Contracts “(EDD 2018/126037) which holds the exact opposite. In it, after acknowledging that the expiration of the period referred to in the Third Transitional Provision converts the requirement of compulsory registration into all simplified procedures processed by public sector entities, it is indicated that it has Produced a circumstance that is preventing the inscription in the ROLECE to occur, clarifying that this circumstance lies in the huge number of requests that have occurred in recent months, which have not been able to be served in its entirety until The present moment. According to the data offered by the recommendation itself, during the months of July and August multiplied by 10 the applications of registration received, compared with the same months of the previous year. For all this and based on the fact that the concurrence could be limited, and taking into account that it is a situation of circumstances, it understands that the requirement of registration is not enforceable and while the principle of concurrence is compromised it will be necessary to go (a) The conditions for accreditation of the qualifications for hiring which the law establishes in general. The Advisory Board Also undertakes to make public the time when the situation has been resolved so that the legal obligation begins to be properly applied.
I Do Not find any justification for the recommendation issued by the State Advisory Board. There is No conceivable situation in which a consultative body can recommend to the Public Sector that it Does Not comply with the law. The problem that has given rise to the recommendation is real, all those involved in public procurement were seeing how they approached the time when the registration in the ROLECSP was compulsory without at any time give the impression that measures were taken So that the ROLECSP had the means necessary to cope with the overload that was coming upon him. It has Now been decided to issue this recommendation which is not, of course, binding, so that the ball the breach will always remain on the roof of the contracting authority that corresponds, which has neither caused nor been able to avoid the problems that appeared.
G.Clarify existing rules, simplify paperwork and reduce bureaucracy
For This group of goals To be achieved, the first problem is the standard itself. We Are talking about a law of 347 articles, 53 additional provisions, 1 abrogation, 5 transients and 16 finals. That Is, a very complex rule in which it is easy to get lost and written in a way that is not easy to understand, even for those of us who have been dealing with public procurement for years. In some articles (in the valuation criteria, for example) it is the case of the establishment of a general rule, then of a few exceptions and then of an enumeration of cases in which the use of the exceptions is not possible. Not even the experts agree on the interpretation of many of their precepts. In Some cases-we have already talked about the contract manager, later we will talk about the announcements of previous information-apparently the law contradicts itself. A shorter rule Would Have been desirable, reflecting the principles, objectives, obligations and prohibitions throughout the contracting (bidding, formalization, execution and extinction) followed very closely in time by a regulation to develop it, Detailing procedures, deadlines, publicity and other details.
In Order To apply the LCSP 2017 with some guarantee, thorough knowledge of the law is necessary in addition to a wide experience in public procurement. Recruitment units are rarely well endowed and very few times the staff that compose them are properly trained. One of the directors of the OIRSC should be concerned precisely with the proper professionalization of the personnel who are in charge of the management and control of public procurement, but if the same organism has not yet been completed, it will be time before it can take the Appropriate measures for professionalization to extend.
The complication of the standard, the workload, the lack of knowledge and the difficulty of access to training make that, in search of an impossible security-or perhaps in certain cases because it is easier and comfortable-support the management of the hiring on Formal issues, which delay the deadlines, keep the bureaucracy-when they do not increase it-and impede the correct application of the standard.
Before addressing the text itself it is necessary to understand, on the part of which we have to apply it daily, that many of the precepts included in the LCSP 2017 require interpretation, interpretation that must imply, in a strict way, the banishment of a Formalism, which despite the improvement of the last few years, remains largely rooted in the culture of public procurement proving very difficult to eradicate, for the reasons indicated in the preceding paragraph.
One thing is the necessary rigour and a very different one a performance that complicate the procedure of the procedures and has as consequence a decrease of the efficiency. The simplification of the procedures and the efficiency in the management are two of the objectives pursued by the LCSP 2017 and any deviation of these objectives will mean, without any palliative, a bad practice in its application.
As clear examples of excessive and inadequate formalism, one can name the following: In a detailed reading of the standard, a series of inconsistencies in the drafting are made apparent, which are causing insecurities, but which have not been the subject of any kind of Error correction or modification. There Are Two significant cases, the person in charge of the contract (if it is obligatory or optional) and the announcement of previous information of the planning (likewise, if it is obligatory or optional), apart from a whole series of errors and minor inconsistencies. A positive interpretation can be made, naming the contract responsible and planning the hiring or interpreting it hiding behind in the comfortable (not to appoint responsible, not to plan the hiring) using as a shield the fact, formally true, that In some article it seems to say “if it had been” named or published, indicating that there are doubts about a clearly established obligation. This second form of interpretation is far from the literality of the norm (arts. 62, for the contract manager, and 28.4, for the announcement of previous information, are clear and imperative), implies excessive formalism and a breach of the principles General-in the second case the principle of transparency is clearly violated and the first is neglected the efficient use of public funds.
On the other hand, within the text there are only three aspects that try, directly, the simplification of the procedures:
The first is the generalization of the responsible statement to tender, although such a declaration must, in all cases, except in the simplified open Procedure and its abbreviated variety, be subject to the format of the Single European Procurement Document. This aspect is being applied without any problem in the hiring procedures, assuming without a doubt an advantage on the fact of having to present (the tenderers) and to evaluate (the administrations) all the documentation accrediting of requirements Previous, even bidders who will not be awarded.
The second is the simplified open Procedure and its abbreviated variety or summary processing (supersimplified), which we will discuss in the new procedures, but whose use has been seriously compromised by the difficulties that have arisen In the Official Register of tenderers and Classified Companies in the Public Sector to assume the number of applications for registration received.
The third is the possibility of accreditation of the fundamental characteristics of the companies (capacity to act, to contract, not to incursion in prohibitions of hiring, solvency and professional qualification) by means of their inscription in the Official Register of Tenderers and Classified Companies in the Public Sector or, where appropriate, in some autonomous register. As has been said, it is not possible to have a generalization of the inscription.
It Is indisputable that there has not been a clarification of the existing rules with the entry into force, and that there is no obvious simplification of the procedures at the moment. It Is necessary to advance significantly in these aspects. Improving the standard, broadening it and interpreting it in a way that is oriented towards these objectives is very necessary. Otherwise the objectives envisaged in the same will not be reached.
V. Transparency and control of public contracts
These Two aspects must be addressed jointly because they are closely related. Darkness impedes control in every way, because we no longer speak only of internal, external controls, those carried out by the bodies responsible for the resolution of the special appeal and the courts of justice. We Also talk about the right of all citizens to know how to use public funds, of which they own, and to know, not only what services are provided, but how these services are provided.
Nor should we forget that companies must have the information that guarantees freedom of access to tenders (general principle) and that transparency in information is an important pillar of equal treatment (another general principle).
And Finally, once again, we must make it clear that public procurement has been identified as a very vulnerable activity to corruption. As a process in which the public and private sectors interact, public procurement seems to offer opportunities for agents in both sectors to divert public funds for the achievement of particular gains. Unfortunately, it is only necessary to read the newspapers in order to verify this fact. A high level of transparency and proper control could lessen this vulnerability.
Traditionally all transparency efforts have been made around the bidding process and the LCSP 2017 continues with the same trend. However, this is not a guarantee, since it is the best regulated, more controlled and transparent phase of the process. The OECD 2004 Forum claimed specific attention to obscure areas, which are less subject to transparency requirements and are therefore potentially more vulnerable to corruption. Dark areas include:
The pre-and post-tender phases, from the assessment of the needs to the management of the contract and payment;
Exceptions to competitive procedures, that is to say, special circumstances, such as non-advertising procedures, which include reduced-value contracts.
For the previous phase the LCSP has regulated the preliminary consultations to the market and obliges to a planning of the hiring, to which it must be advertised. With Regard to the post-tender phase, the need for control of the implementation of contracts has already been mentioned and it is necessary to mention the enlargement of the possibilities for the interposition of the special resource on recruitment.
And As for the exceptions to the competitive procedures, the LCSP 2017 has eliminated the negotiated procedure without publicity by reason of amount, which had been distorted completely-an absolute success-creating the bidding procedure with Negotiation and modifying the terms of the negotiated without publicity, of course absolutely appraised and whose assumptions must be interpreted in a restrictive way. Special Mention deserves the changes in the minor hiring.
Likewise, in relation to transparency and control, the obligations of publication in the contracting Profile are increased (art. 63) and the Public Sector Procurement Platform (PLACSP) is put in value, including as a cause of nullity the fact of not To publish a notice of tender in the same or in the corresponding regional level, in addition to indicate that the publication of advertisements and other information will only have effects when those profiles are lodged in the same one. In this sense, the exponential increase of the information contained in PLACSP-in the year 2017 were made 69,260 publications, between 1 January and 31 October 2018 had already been made 98,652 publications, of which 84,700 from 8 March-is causing Problems of management and maintenance of the same, evident, but not as serious as in the case of ROLECSP. However, bearing in mind that there are currently 14,900 contracting bodies included in the platform, estimated at least 22,000 the contracting bodies existing in the total administrations (only in the local administration are 17,944 Entities, according to the General database of Local Entities of the General Secretariat of regional and Local Finance, dependent on the Secretary of State of the Treasury), and that therefore still do not use PLACSP, at least 33% of the contracting bodies, yes It was worrying that they could continue or even increase the problems that had arisen, causing a serious detriment to the recruitment of the entire Public Sector.
Finally, in relation to transparency and control and the referral of a greater number of contracts to the Court of Auditors or equivalent bodies of the Autonomous Community and to the Registration of contracts is required, without the possibility of knowing data on the Compliance with this end and how registered recruitment has evolved.
A.Preliminary Market Consultations
Preliminary consultations to the market are born from the effort to give light to one of the dark areas of recruitment that have been identified: this is the most initial phase of the procedures, when the need has been detected but the spreads have not even been elaborated That govern the contract.
The purpose of the consultations is threefold: on the one hand to obtain the necessary information for an appropriate configuration of the contract, in such a way as to cover the necessities that have appeared in the most suitable and efficient manner possible; On the other hand, to inform the potential stakeholders of the needs of the administration and finally to allow the participation of the market, particularly of the specific market that may be interested in the benefit, in the definition of the contracts and the Procedures to adjudicate them.
The consultation procedure itself is transparent. It starts with an announcement in the Platform of Procurement of the Public Sector or in the autonomic equivalents, and the result, which has to be realized in generic characteristics or general requirements without that it can be the reflection of a concrete solution, is It will reflect in a report motivated by the same publicity obligations as the specifications, which form part of the dossier and which will especially justify the fact that the contracting authority, when writing the sheets, will not take into account the results of the Consultations.
It Is possible to check the use of this figure using the ads related to the same published in PLACSP. Since the entry into force of the law, approximately 70 preliminary consultations to the market have been published, predominating the consultations regarding tenders with technological characteristics. Therefore, although it cannot be said to be widespread, it does prove that this figure is being applied by the different administrations to properly configure their hirings, especially the more complex ones.
B. Announcement of prior information on recruitment planning
As in the case of the contract manager, the LCSP 2017 is certainly very confusing, favoring the emergence of some questionable interpretations.
For starters, art. 28.4 establishes a clear mandate: “Public sector entities will schedule public procurement activity, which they shall develop in a budgetary year or multi-annual periods and give their recruitment plan to be known In advance by means of an announcement of previous information provided for in article 134 which at least collects those contracts which will be subject to harmonized regulation. “
However, article 134 states that “contracting bodies may publish a notice of prior information in order to make known those contracts for works, supplies or services which, being subject to harmonized regulation, have projected Adjudicate within the time limit referred to in paragraph 5 of this article. ‘ The reference to paragraph 5 must be understood to be made to paragraph 6 clarifying “The period covered by the notice of prior information shall be a maximum of 12 months from the date of dispatch of the abovementioned notice to the Office of Publications of the European Union or , where appropriate, from the date of dispatch also to the latter, of the notice of publication in the contracting profile referred to in the preceding quarter.
However, in the case of service contracts which are subject to any of the special services in Annex IV, the notice of prior information may cover a period of more than 12 months. “
On the other hand, referring to the special services concession contracts of Annex IV, article 135 LCSP 2017 obliges the call for tender to be made, in any case, by the announcement of prior information referred to in the Disp. Adic. 36 ª, which, on the Other hand, indicates that “contracting bodies holding contracts for special services concessions in annex IV shall use as a means of call for tenders a notice of prior information which must have the content established in the Annex III. B. Section 3. These announcements will be published in the “Official Journal of the European Union” and in the contracting profile “
As stated in the precepts quoted in the preceding paragraphs, the following is deduced:
It Is compulsory to publish an announcement of prior planning information, reflecting at least the contracts of all types that are subject to harmonized regulation and which may cover a maximum period of twelve months, except in the case of the special services of the Annex IV, where such a period may be higher.
In the case of the provision of services in Annex IV, the means of invitation to tender shall be compulsory a notice of prior information published in the OJEU and the contracting Profile.
With Regard to the reduction of deadlines for submission of proposals, article 156.3 a) LCSP 2017 indicates that, if the contracting authority had sent a notice of prior information, the general term for submission of proposals may be reduced to 15 days. It then clarifies that this reduction will only be admissible when the voluntary notice of prior information has been sent for publication with a maximum advance of twelve months and minimum of thirty-five days at the date of dispatch of the notice of tender, As long as it was included, if available, all the information required for this.
Therefore, we have several types of ads:
The obligatory Ones established in the article 28.4 LCSP 2017, which give publicity to the programming of the hiring.
-Volunteers, who are individual and must include all available information, with different models if they are general services or special services of annex IV.
–Those of previous information which will be in turn notice of tender for the case of concessions of special services of annex IV.
The only obligatory advertisements, in addition to those of the bidding, are those of previous information, established in art. 28.4, which are responsible for giving publicity to the scheduling of the hiring, including, at least, all the contracts subject to regulation Harmonised. Its Obligation has no doubts, and they are in charge of the transparency of the schedules of recruitment becoming one more aspect of the own principle of transparency.
C-Special Resource on recruitment
The Special resource for recruitment has, arguably, been one of the instruments whose incorporation into public procurement has proved to be more successful and produced better results. It has Not only contributed to the correction of errors and the elimination of bad practices, but also its resolutions and agreements have acquired an educational nature, being a reference material for hiring managers. We must Not forget that, although the resolution of a special recruitment resource takes about a month, a judicial decision to an administrative contentious resource may take months or years, and given the dynamism of public procurement, When you get a sentence the law may have changed-in fact it is most likely.
The Special resource for recruitment allows tenderers to resort to situations they consider to be detrimental to their interests, at no cost and in such a way that they do not become detrimental, since in addition to their rapid resolution, it has the Possibility of precautionary measures.
The LCSP 2017 extends the scope of this resource, without such enlargement affecting the necessary agility that the system should have in the resolution of the same, allowing it to be able to stand in the case of works contracts, concessions of works and Services whose estimated value exceeds the three million and service and supply contracts with a value exceeding one hundred thousand euros, and also increases the acts susceptible to appeal, among which, as a novelty, the admission of tenders is included-previously He considered that exclusion was only susceptible to recourse, and modifications if it was considered that they did not comply with the provisions of the arts. 204 and 205 LCSP 2017 and therefore should have been the subject of a new tender.
The only drawback that can be found is, once again, the need for resources for the bodies responsible for resolving the appeal.
The decrease in the threshold for the interposition of the special resource on recruitment has had a greater impact on the bodies responsible for resolving the resource at the regional level, since until the entry into force of the standard its appeal threshold was Almost twice as much as the Central Court, having within its competence the General Administration of the State, with a far lower threshold, has not felt so much the impact of the entry into force of the LCSP 2017. To Verify this aspect it is enough to analyze the data by all the bodies responsible for the resolution of the special resource: the organs of Catalonia, Navarra, Andalusia and Castilla y León, to November 9, have published more resolutions than in the whole year 2017, Aragon more Of 85%, while the number of resolutions published by the Central Court does not reach 75% of the total of 2017.
The increase in the possibilities of a special resource for recruitment, and its special impact on the bodies responsible for its resolution at the regional level, have resulted in a decrease in the quantitative importance of the Central Tribunal, Today, from 45.59 to 34.70% of the total number of resolutions issued, without this decrease can be imputed to the appearance of the Galician Tribunal, whose first resolutions were published in March 2018, since the total of the same barely reaches 3.5% of tot To.
In the number of resolutions issued by the Central Administrative Tribunal for Contractual Resources, we observed a peak between March and April 2018, justified by the increase in the publication of contracts immediately before the entry into force of the LCSP 2017. In the subsequent months, the number of resolutions remains the same or is slightly lower than those published in the same months of the previous year.
However, if we use the data summed up from the rest of the special resource bodies, we find that the number of resolutions increases steadily from April.
The conclusion seems clear: the LCSP 2017 has produced an increase in the number of special recruitment resources brought before the relevant bodies, an increase that is concentrated in the regional bodies, and that even though they can only be The effects of the reduction of the threshold for its interposition appear and that tenders have decreased as a result of difficulties in adjusting the recruitment of public administrations to the new law. This trend will increase when a normal pace of tenders is reached and resources begin to be brought in as a result of the increase in actionable acts, for example the changes that should (presumably) have meant a new tender.
It would be important, Therefore, to take appropriate measures to provide the necessary means for the bodies responsible for the resolution of the special resource to continue to perform their functions in an appropriate manner.
D) Minor Recruitment
Lower recruitment, also called direct adjudication, has been assuming a percentage, which although it was extremely difficult to quantify, since it did not require any publicity and the payment could be made directly or through fixed cash advances or Similar, it was certainly important, arriving in some administrations, particularly local to more than 70% of the total budget execution leaving aside the personnel costs.
Bearing in mind that these are procedures without any publicity or compulsory concurrence, the figure of the minor contract has constituted a resource to avoid the application of the basic principles of public procurement and therefore have Produced abuses that have been considered, on many occasions, as fractions of contracts that were a criminal offence (e.g. the STS of 30 April 2015, EDJ 2015/68322, which understands that it is a crime of prevarication, or the STS of 15 July 2013, EDJ 2013/138220, which understands that there is also a crime of embezzlement.
For all the above, it was imperative a new regulation of the minor contract, which reduced this recruitment to specific situations, unpredictable and non-repetitive that will undoubtedly appear and should be covered with the necessary celerity and, if also added a Low economic amount, with the least amount of paperwork possible, but respecting the general principles of recruitment-at the end of the day are contracts-mainly that of transparency.
It Is maintained in the same terms as the previous rule the temporal scope of the minor contract (one year unextendable) but decreases the thresholds (from 18,000 to €15,000 for supplies and services and from 50,000 to €40,000 for works), it is obligatory to set up a file for each minor contract and is obliged to publish, at least quarterly, the minor contracts awarded, in the profile of the contractor as well as to its referral to the Court of Auditors and to the Register of Contracts.
However, the most uproar has caused the prohibition, contained in article 118.3 that “the dossier will justify that the object of the contract is not being altered to avoid the application of the general rules of engagement, and that the contractor has not Subscribed more contracts smaller than individual or jointly exceed the figure in the first section of this article. “
This amount limitation has been interpreted by practically all the consultative bodies in the field of public procurement with disparate and contradictory results. Some are pronounced in the sense that the limitation must be applied by type of contract (services/supplies/works), others that should be for the purpose provided that such object is “qualitatively” different or not “substantially” equal and this justified or not in the Dossier, also some understand that it will have to be controlled in the financial period, others that in the year immediately preceding… With all the possible combinations between these factors. And to finish the task has been published a change of limit that affects contracts for research and raises it to €50,000 of estimated value (equal or lower), and only applies to supplies and services held by public agents of the Spanish System of Science, Technology and Innovation, provided that they do not go to general services and infrastructure of the contracting authority.
I Do Not think that there has ever been a situation of greater legal uncertainty on a subject of public procurement. There Was An apparent consensus that the figure of the minor contract should be regulated, the LCSP 2017 has tried to do so, and it has not done so in a darker and less accurate way than in other respects, but the various interpretations are about to make meaningless the attempt to r Egulación. It is Only to be expected that, in view of the stir in the regulation of the lower contract, the OIRSC, at the time it is established and functioning, will issue some kind of recommendation that clarifies the form of interpretation and contributes to the necessary legal certainty.