Consulting, engineering, structure, engineering and concrete planning and public procurement
They’re advantages of an mental nature
Probably, the regulation of consulting, engineering, structure and concrete planning constitutes one of many worst regulated facets of the Public Sector Contract Legislation. A regime that loses a part of its potential to improve the advantages acquired via these contracts from the general public sector.
The fundamental norm that incorporates its authorized regime, Further Provision 41, was integrated throughout the modification course of. The unique regulation was rather more restricted and, immediately, by increasing the implications that derive from its nature of mental advantages, there are some facets of its authorized regime, they don’t match adequately with mentioned principle. Further Provision 41 supplies the next:
Forty-first extra provision. Particular guidelines for public procurement of structure, engineering, consulting and concrete planning providers.
The character of advantages of an mental nature to structure, engineering, consulting and concrete planning providers is acknowledged, with the consequences derived from the provisions contained on this Legislation.
The obvious issue is given by the next information: the advantages of an mental nature discover their lodging in article 9; as mental property contracts and that, due to this fact, is a contract excluded from the LCSP. Confronted with the character of the contract not included, the textual content of the Invoice, which didn’t embody the popularity of its mental character, nonetheless set sure pointers for the evaluation of the standard of the service and, due to this fact, thought of it to all results, contracts included within the Legislation. At present, for my part, its consideration as a contract not included prevails.
The processing of the legislative process of the Contract Legislation didn’t conclude with a harmonization of the precepts tailored to the amendments that had been accredited. Within the case of consulting, structure, engineering and concrete planning contracts, the issue is that, with this failure to hold out a complete studying of the norm, we find yourself having two authorized regimes; one thing that, if a superficial studying of the regulation is made, doesn’t find yourself being acknowledged.
Whether or not you prefer it or not, it may be analyzed from a really perfect perspective whether or not these providers ought to be of an mental nature. The truth is that within the Legislation of Contracts of the Public Sector they’ve it and that is one thing that’s indeniable. A debate on this query is just unreasonable.
And it’s as a result of exactly its nature of mental provision is crucial each for the writer of the work and for the general public sector entity. For the primary, as a result of it endows it with the worth of creation and thus has a scope of recognition. It would not matter what it’s, a product, a method or a process. Allow us to recall right here the influence of a buying process, akin to that of López de Arriortúa.
However it is usually the identical for the general public sector entity itself, as a result of having its personal strategies avoids copying and, with this, the final pursuits are higher assured. Let’s assume that immediately there may be not solely competitors between corporations, but additionally between public administrations.
The regime from which we have now to attract the implications is that of mental advantages, regardless of the profit. That is an previous and going nowhere debate. In actual fact, the decision of September 9, 2020 of the Provincial Administrative Courtroom of Contractual Assets of Bizkaia, which needed to analyze a problem from the School of Architects, states clearly and clearly what the basic consequence is: to eradicate the talk on whether or not such or which provision fall inside the idea of mental property:
“The brand new regulation contained within the LCSP exactly what it permits is to beat the interpretative debate of the idea of provision of an mental nature for the needs contemplated within the LCSP itself in relation to structure, engineering, consulting and concrete planning providers, thus avoiding the necessity to enter to look at casuistically whether or not or not the notes of creativity, innovation and originality are given in some of these contracts, that are required for the needs of the safety of the fitting to mental property ”.
First authorized penalties
Nature is, on this manner, clarified: mental property for all these consulting, structure, engineering and concrete planning providers. They’re all actions that body an motion, a planning and a outcome that impacts the technology of concepts within the space affected by the contract. Concepts that will or might not be worthy of patent, however what’s related is that, when the contract makes use of any of the CPVs linked to those areas, they’re mental property.
The consideration of mental provision implies that the primary attribute of the bidding course of is that it offers with contracts excluded from the contract laws, each from Legislation 9/2017, and from Royal Decree Legislation 3/2020, of contracts of the particular sectors . The belief of the regime of contracts with mental advantages is located within the scope of the contracts excluded from the rule as a consequence of the provisions of article 9.2 LCSP, which determines that the instances of “contracts” are excluded from its scope of software. of sale, donation, trade, lease and different related authorized companies on actual property, negotiable securities and incorporeal properties (…) ”(The daring is mine).
As is thought, the regime of excluded contracts is derived from article Four of the LCSP, by advantage of which “The authorized relationships, companies and contracts talked about on this part are excluded from the scope of this Legislation, and will likely be ruled by its particular guidelines, making use of the ideas of this Legislation to resolve doubts and gaps that will come up “. That’s, for the case that considerations us, the regime is decided by Royal Legislative Decree 1/1996, of April 12, which approves the revised textual content of the Mental Property Legislation, regularizing, clarifying and harmonizing the authorized provisions present on the matter.
Its article 10 is the one which marks its scope of software, referring to mental creations (past the non-exhaustive exemplification included within the principle). Points all of them that join us with the mental course of that’s carried out once you need to choose a marketing consultant, architect, engineer or city planner for the event of a course of. It’s his means to hold out work and his trajectory that’s exemplary. There are others who can do it, however the traits of one in all them is the one that’s decisive for the kind of goal you need to obtain. In different phrases, it’s a mechanism to ensure the standard sought by the general public sector entity.
What are the attribute notes of its authorized regime?
- The primary attribute is that, from the outset, the contract award process might not be topic to the LCSP guidelines, permitting direct award. Nevertheless, because of this duality of authorized regimes that we have now seen earlier than, the entity awarding the contract can award it in accordance with the principles of the LCSP. Within the latter case, there are additionally particular guidelines in articles 143.2, 145.3, 145.4 159.1 b), 159.6 and 160.4. However remember that there are two completely legitimate contract award mechanisms, each of which represent, to mirror the expression of Alejandro Nieto, a suggestion to the general public sector entity to find out which one is extra applicable for his or her circumstances.
- Not all the supply must be of an mental nature, however the rule on blended contracts is relevant. In impact, the second attribute is that these contracts topic to the mental property regime also can ponder advantages inherent to typical contracts if their estimated worth will not be greater than 50% of the entire quantity of the estimated worth of the contract.
- Mental advantages are particularly related when it comes to modifying the transparency regime. On this sense, they’re linked to enterprise secrets and techniques, that’s, in accordance with the provisions of article 1 of Legislation 1/2019, of February 20, on Enterprise Secrets and techniques, “any info or information, together with technological, scientific , industrial, industrial, organizational or monetary, that’s secret and presents a enterprise worth, be it actual or potential ”. Exactly because of this, neither their award must be revealed (particularly within the subject of public corporations) nor are they topic to the transparency guidelines, as offered for within the Article 14.1 h) of the Law of Transparency and Good Governance.
- Possession of what was created inside the scope of those contracts ought to be transferred, via the corresponding license, to the entity awarding the contract. A side that forestalls, a posteriori, its replicability by the entity that created it within the instances during which we will converse of unique task. A side that, once more, is very related within the subject of public corporations.
- The thing of the contract will entail the acquisition by the general public sector entity of its personal instruments, methodology, objects and processes that can’t be replicated or utilized in any manner by others. A side that’s particularly related for the enterprise public sector, because it prevents corporations from Competing corporations buying these outcomes.
- They can’t be used to buy pc packages. I believe that the point out of the principle refers back to the acquisition of licenses for packages which are commercialized available in the market (Microsoft OFFICE, to take an instance) however it can not consult with the development of purposes. Right here the mental property result’s clearer than in different instances.
- They can’t be used for authorized providers both, though, on this case, there’s a provision within the Directive that permits the direct award of the contract.
These could be, usually phrases, the notes that characterize the regime of consulting, engineering, structure and concrete planning contracts in public procurement laws. Providers which are extensively used, particularly after alternative charges and wage invoice have decreased the general public sector’s means to make use of its personal assets, and consulting ought to be used excessively. A side, which, nevertheless, as in “The infinite story” have to be instructed on one other event.