Beyond the public contract: not every public sector contract is a public contract –

Legislation 9/2017, on Public Sector Contracts, is dying of success. The purpose shouldn’t be that it’s being utilized, with roughly success, to the circumstances contemplated in it, however fairly that it’s extending its scope of utility to circumstances by which it mustn’t.

The issue comes from a misunderstanding of the Directive and the Legislation itself. What’s a public contract? Article 1 of the Directive makes it fairly clear: “contracting procedures by contracting authorities with respect to public contracts and venture tenders, whose estimated worth is the same as or higher than the thresholds”, which is laid out in article 1.2 of on this method: the acquisition via a public contract, of works, provides or companies by a number of contracting authorities from the financial operators chosen by mentioned contracting authorities ”.

Subsequently, for the directive, they’re solely these of the contracting authorities to award contracts for works, companies and provides whose worth is larger than these decided by the directive itself. No extra no much less. Something that’s out, something aside from these few contract varieties, shouldn’t be a public contract.

You will need to do not forget that the LCSP is a transposition rule of European regulation for the reason that framework for deciphering this and the opposite points is European regulation. The Directive, the remainder of European regulation and, on the similar time, European jurisprudence. The complete identify of the usual makes it clear and, nevertheless, it isn’t taken into consideration when making use of the supply: Legislation 9/2017, of November 8, on Public Sector Contracts, by which they’re transposed to the Spanish authorized system the Directives of the European Parliament and of the Council 2014/23 / EU and 2014/24 / EU, of February 26, 2014.

In Spain we observe a conception of contract laws that’s not that of the Directive however comes from Franco’s laws, the State Contract Legislation of 1964. It’s noticeable within the significance that’s given to the subjective components of contracting that don’t represent a related downside within the Directives, as an alternative of affecting the practical ones that represent an important factor. And it exhibits that within the utility of the norm, Europe is rather more absent than it must be, even though it constitutes the parameter of interpretation of the norm.

In different phrases, once we apply the LCSP we should use European regulation, prefer it or not. If it isn’t performed, we’re creating a special Legislation that on many events can contradict the which means of the directive. We’d be making a literalist interpretation of the norm that’s removed from being the right sense of interpretation.

Actually, we’ve to be very conscious that the LCSP itself has a really broad set of precepts that represent exceptions to the applying of the rule. Some precepts that what they intend is to unravel essential conditions by which there may very well be doubt about the necessity to apply the norm. The mercantile contracts that the administration makes there isn’t any doubt that they’re out. It was not essential, however the patrimonial ones are additionally out.

The examples of these circumstances the place the contract regulation is utilized with out obligation are diverse. For the needs that I wish to level out now, we may recall some particularly vital conditions:

The dedication of the accomplice for the creation of a public industrial firm: civil and industrial laws have firm contracts that don’t fall inside the scope of utility. Nevertheless, there appears to be a temptation to use a rule that has little to say. An assumption, by the way in which, that’s going to be particularly related within the close to future by which, for the execution of the subsequent technology plans, many joint ventures should be created, as required by regulation. The factor of belief can also be an element that serves to justify its failure to use.
Contracts for the technology of added worth by means of mental property clauses, a facet that’s linked not solely to the creation of emblems and patents but additionally to areas akin to enterprise tasks or the technology of public insurance policies with imaginative options that may put to a public administration in a state of affairs of benefit over one other.
Contracts for contracting authorized companies, expressly excluded within the Directive in a rule that has not been included within the transposition rule.
Contracts awarded by public sector entities that shouldn’t have the character of contracting authority as a result of they’re competing available in the market. This impacts not solely articles 321 and 322 but additionally the makes an attempt to use all of E book I of the LCSP to those entities; one thing that’s not needed by the Directive and that, subsequently, shouldn’t be a parameter of interpretation of the LCSP. It additionally represents a severe detriment to the general public sector in relation to the execution of contracts.
Regardless of the provisions of article 11.4, there may be a lot resistance to understanding the twin place of the general public sector as contracting authority and as financial operator available in the market, by which case the LCSP shouldn’t be utilized.
The regime of personal means and intra-group contracts that creates with a type of forceps a market the place it doesn’t exist. Spanish laws itself has forgotten the transposition of a direct utility rule such because the project of competences, which solves most of the issues of inner relations inside the Administration.

Is there a bonus to making use of contract regulation in circumstances the place it shouldn’t be performed?

Fairly the other.

It supposes, from the outset, an important inefficiency to the extent that materials, private and monetary means must be spent within the articulation of complicated procedures that aren’t essential or that may trigger an added benefit. It’s one thing very related in a context the place there’s a lack of private and materials sources within the public sphere to hold out the reconstruction operation that we’ve on the desk.

Second, it supposes nice inefficiency, derived from the time it takes to handle the contracting procedures, which causes the necessity within the normal curiosity to stay unmet although it’s essential. Within the subject of subsequent technology tasks, it’s one thing particularly related, insofar because the contract award and execution interval shall be particularly brief, as corresponds to the decision of a state of affairs of want.

It entails, thirdly, recognizing transparency necessities in public operation (derived from using the platform) that results in the added benefits that the Administration and different public sector entities could discover are diluted by with the ability to be imitated by different related entities.

The important issues are components for a essential debate within the space of ​​recruitment. We’ve at stake the effectiveness and effectivity of the general public sector in an space that’s of extraordinary significance and that ought to result in an intensive evaluation of the Legislation on Public Sector Contracts. It must be thought that all the above impacts solely the scope of utility.

These are the important facets of my intervention on the XII Public Procurement Seminar in Panticosa (Huesca).

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