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What is the relevant legislation and in outline what does each piece of legislation cover?

In the field of government procurement in Spain, the following provisions apply: (i) Royal

Legislative Decree 3/2011, of 14 November, approving the Consolidated Version of the Public

Procurement Act (Texto Refundido de la Ley de Contratos del Sector Pblico or TRLCSP),

providing general rules on public procurement; (ii) Royal Decree 1098/2001, of 12 October,

approving General Regulations on the Public Procurement Act (implementing TRLCSP); (iii)

Royal Decree 817/2009, of 8 May, partly implementing Public Procurement Act 30/2007, of 30

October, regulating certain matters related to the classification of contractor companies, the

Official Register of Bidders and Classified Companies held by the State, procurement panels and

communications to the Official Register of Contracts; and (iv) Royal Decree 814/2015, of 11

September, approving the Regulations governing special procedures to review decisions in

contractual and organisational matters, Central Administrative Court for Contractual Appeals.

It must be kept in mind that some Spanish autonomous regions (Comunidades Autnomas)

have approved their own rules in public procurement matters, implementing basic state laws.

1.2 Are there other areas of national law, such as government transparency rules, that

are relevant to public procurement?

Yes, there are other provisions of Spanish Law which are relevant to public

procurement. Without being exhaustive, the following can be mentioned: (i) Act 19/2013, of 9

December, on Transparency, Access to Public Information and Good Governance: all public

sector entities are obliged to publish information on their contracts and arrangements; (ii) Act

20/2013, of 9 December, to Guarantee Market Unity: forbidding certain practices restrictive of

the free movement of goods and services, affecting public procurement, and also imposing duties

to report public procurement information; and (iii) Act 14/2013, of 27 September, to back up

entrepreneurs and their internationalisation: containing certain measures to promote public

procurement with enterprises.

1.3 How does the regime relate to supra-national regimes including the GPA, EU rules

and other international agreements?

Spain, as a European Union Member State, is subject to EU Law in public procurement matters

and, particularly, to both the principles set out in the EU Treaties and the secondary EU Law in

force, currently EU Directives 2014/23, 2014/24 and 2014/25. By virtue of the principles of

primary and direct applicability of EU Law, European Union rules in public procurement matters

will prevail over domestic law.

It should be noted that the deadline for implementing the above said Directives into Spanish Law

has already expired (April 18, 2016), which is the reason why they may directly apply in Spain

until a new act is passed by the Spanish Parliament.

The public procurement market in Spain is open to the signatory countries of the Government

Procurement Agreement (GPA) within the framework of the WTO, as well as to Norway,

Iceland and Liechtenstein, as member states of the European Economic Area (EEA).

1.4 What are the basic underlying principles of the regime (e.g. value for money, equal

treatment, transparency) and are these principles relevant to the interpretation of the

legislation?

The governing principles of public procurement in Spain are the following: free access to

tenders; disclosure and transparency in procedures; non-discrimination and equal treatment

amongst candidates; effective use of public funds; guarantee of fair competition; and selection of

the most advantageous bid in economic terms.

1.5 Are there special rules in relation to procurement in specific sectors or areas?

Yes. There are some: (i) Act 31/2007, of 30 October, on procurement procedures in the water,

energy, transportation and postal services sectors; (ii) Act 24/2011, of 1 August, on public

procurement in defence and security matters; and (iii) Act 8/1972, of 10 May, on the

construction, conservation and exploitation of motorways under a concession.

Application of the Law to Entities and Contracts

2.1 Which public entities are covered by the law (as purchasers)?

The following public entities are covered: General State Administration; Spanish autonomous

regions; local bodies; Social Security management entities and common services; autonomous
bodies; public universities; business public entities; other public law entities; and joint ventures

of public entities.

2.2 Which private entities are covered by the law (as purchasers)?

The following private entities are covered: corporations, of which the majority stake is public or

which are controlled by public sector entities; foundations, of which the majority stake is public

or which are controlled by public sector entities; associations of public sector entities; private

concessionaire companies, with respect to certain works contracts awarded to third parties; and

other private entities directly awarding certain contracts for works and subsidised services,

covering more than 50% of their value, to public sector entities.

2.3 Which types of contracts are covered?

The law applies, with a varying level of intensity, to two types of contracts: (i) administrative

contracts, i.e. the following contracts executed by the Public Administration: (a) standard

contracts (works, supply, concession of public works, management of public services

(concession of services), public-private partnerships); and (b) special contracts; and (ii) private

contracts (only their preparation and award are regulated to a greater or lesser extent).

2.4 What obligations do purchasers owe to suppliers established outside your

jurisdiction?

Procurement bodies must guarantee the equitable, non-discriminatory and transparent treatment

of any bidders belonging to other European Union Member States, or to the European Economic

Area. The treatment given to these bidders should be equivalent to that of national bidders.

In the case of OECD and WTO Member States, certain equitable treatment standards will apply.

In the case of bidders from third States, the principle of mutual recognition will apply.

2.5 Are there financial thresholds for determining individual contract coverage?

There are financial thresholds to ensure that contracts are governed by harmonised regulations,

i.e. the application of rules implementing secondary EU Law:

 Contracts for works and the concession of public works, for an estimated value that is equal to

or greater than 5,225,000 euros.

Services concession contracts, for an estimated value that is equal to or greater than 5,225,000

euros.

Supply contracts and certain services contracts, for an estimated value that is equal to or greater

than 209,000 euros, or 135,000 euros if awarded by the General State Administration, its

autonomous bodies or Social Security management entities and common services.

Subsidised works contracts, for an estimated value that is equal to or greater than 5,225,000

euros, or for works-related services, for an estimated value that is equal to or greater than

209,000 euros.

2.6 Are there aggregation and/or anti-avoidance rules?

The TRLCSP includes rules to determine the estimated value of different types of contracts and

to enable a fractioning of the contractual object, by dividing it into lots.

2.7 Are there special rules for concession contracts and, if so, how are such contracts

defined?

The TRLCSP foresees special rules on the preparation, award, effects and cancellation of

concession contracts for public works and the management of public services (services

concessions).

The object of a public works concession contract is to construct certain works or to execute

specific tasks, including the restoration and repair of existing constructions, as well as the

conservation and maintenance of constructed components, in which the consideration provided

to the concessionaire either consists of the right to exploit the works, alone, or this right plus the

payment of a price. A concessions contract will be performed at the concessionaires sole risk.

A public services management contract (services concession) is a contract whereby a Public

Administration entrusts a natural or legal person, over a certain period of time, with the

organisation and operation of a service, which the Administration is providing as part of its own

competences and which may be exploited by private citizens. Under a concession, the contract is

performed at the concessionaires sole risk: what makes a services contract different is that the

risk of exploitation is transferred.

2.8 Are there special rules for the conclusion of framework agreements?

Yes. Framework agreements may be concluded with one or several enterprises in order to

determine the conditions governing contracts of this same nature and with the same object, to be

awarded over a certain period of time. These framework agreements should not be used

abusively or in such a way as to hinder, restrict or distort competition. If concluded with several

enterprises, there must be at least three. Such conclusion should be published on the contracting

profile of the procurement body and in official daily publications. Subject to exceptions, the

maximum term is four years.

2.9 Are there special rules on the division of contracts into lots?

Yes. The object of a contract may be divided into lots if it is able to be fractioned, this is duly

justified in the proceedings, the lots are able to be separately used or assigned and constitute a

functional whole, or if this is required by the nature of the contract. A contract may not be

fractioned in order to reduce its value and avoid any disclosure requirements or others applicable

to the award procedure.

3 Award Procedures

3.1 What types of award procedures are available? Please specify the main stages of

each procedure and whether there is a free choice amongst them.

There are various types of award procedures foreseen in the TRLCSP: (i) open (any interested

enterprise may apply); (ii) restricted (any interested enterprise may request its participation, but

proposals may only be made by enterprises which, following such prior request and based on

their solvency, are selected by the procurement body); (iii) negotiated (only possible in the

exceptional cases contemplated in the TRLCSP, where the award is made to a bidder duly

selected by the procurement body, after consulting several candidates and negotiating the terms

of the contract with one or more of these); and (iv) competitive dialogue (only used for

particularly complex contracts, where the procurement body leads a dialogue with the candidates

selected, following their application, in order to discuss one or several solutions that are able to

cover their needs and on which the elected candidates may base their bid). Minor contracts (in

an estimated amount that is less than 50,000 euros, for works contracts, or 18,000 euros for all
other contracts) may be directly awarded to any enterprise enjoying full legal capacity and the

necessary professional qualifications to provide the service. The choice of one type of procedure

or another will depend on the estimated value or nature of the contract.

3.2 What are the minimum timescales?

The ordinary timescale in which to make bids, in contracts subject to harmonised regulations, is

52 days. For contracts not subject to harmonised regulations, the timescale will be 15 days or 26

days for works contracts and public works concession contracts. Timescales to tender, award

and formalise the contract are generally shortened to half if the contract needs to be urgently

processed.

3.3 What are the rules on excluding/short-listing tenderers?

Only Spanish or foreign, legal or natural persons may enter into contracts with the public sector

if they enjoy full legal capacity, are not involved in any procurement prohibition (in accordance

with Articles 60 ff. TRLCSP), and provide proof of their economic, financial and technical or

professional solvency, or, in those cases required by the TRLCSP, of their classification.

3.4 What are the rules on evaluation of tenders? In particular, to what extent are

factors other than price taken into account (e.g. social value)?

Public procurement pursues a selection of the most advantageous bid, in financial terms, chosen

according to criteria directly linked to the object of the contract: quality; price; the updating

formula used on any remuneration connected to use of the works or provision of the service; the

term of execution or delivery of the service; the cost of use; environmental characteristics or

others linked to the satisfaction of social requirements, responding to the needs of particularly

underprivileged social groups to which the users or beneficiaries of the contracted services

belong; profitability; technical value; aesthetic or functional characteristics; availability; and cost

of spare parts, maintenance, technical assistance, after-sale service or other similar factors. If a

single award factor is taken into account, it will necessarily be the lowest price.

3.5 What are the rules on awarding the contract?

The rules on awarding the contract should be determined by the procurement body and described

in the announcement, in the lists of specific administrative clauses or in the descriptive

document. The procurement body will award the contract to the most advantageous bid, in

financial terms, selected further to said rules. The award must be reasoned, notified to the

candidates or bidders, and simultaneously published in the contracting partys profile.

3.6 What are the rules on debriefing unsuccessful bidders?

Notification of the award will in any case include the necessary information to enable an

unsuccessful bidder to bring a sufficiently reasoned appeal against the award decision.

3.7 What methods are available for joint procurements?

The TRLCSP foresees dynamic purchasing systems for the procurement of works, services and

supplies for current use, with characteristics generally available on the market and which are able

to cover the needs in question; it is also possible to execute a centralised procurement of

supplies, works and services, under a general contract and with basically homogenous

characteristics amongst the various bodies and authorities.

3.8 What are the rules on alternative/variant bids?

Each bidder may only make one proposal. However, if the award takes criteria other than the

price into account, alternative or variant bids may be allowed, as long as the list of specific

administrative clauses has expressly contemplated this possibility and specifies which

components are covered and in what terms.

3.9 What are the rules on conflicts of interest?

Some of the procurement prohibitions established in Article 60 TRLCSP are aimed at avoiding

conflicts of interest when awarding a contract, preventing bids from being made by persons

related to the holders of the procurement body. Rules on incompatibilities and conflicts of

interest amongst the various Public Administrations (e.g. Act 3/2015, Act 53/1984) serve the

same purpose. In turn, Article 24 of EU Directive 2014/24 regulates conflicts of interest in

public procurement in order to avoid any distortion in fair competition and to guarantee equal

treatment.
4 Exclusions and Exemptions (including in-house arrangements)

4.1 What are the principal exclusions/exemptions?

TRLCSP excludes from its scope some businesses/agreements. The following are the principle

exclusions: (i) collaboration agreements between Public Administrations; (ii) collaboration

agreements between Administrations and legal or natural persons subject to private law, as long

as their object is not covered by the contracts regulated in the TRLCSP or in special

administrative rules; (iii) financial services related to the issue, purchase, sale and transfer of

securities or other financial instruments; (iv) management of in-house providing; (v) sale and

purchase agreements, donations, exchange agreements, leases over real estate; and (vi)

authorisations and concessions over assets belonging in the public domain.

4.2 How does the law apply to in-house arrangements, including contracts awarded

within a single entity, within groups and between public bodies?

Public sector bodies, institutions and entities will be treated as in-house providers of the

awarding authorities if the following conditions are fulfilled: (i) the in-house service is controlled

by the awarding authority in a similar way to how it controls its own services. In the case of

companies, the entire capital stock should be state-owned; (ii) the in-house provider carries out

most of its activity with the awarding authority (at least 80%, according to EU case law); (iii)

status as an in-house service should be expressly recognised in the incorporation rules or by-

laws, specifying the regime applicable to any tasks that may be entrusted; (iv) in-house providers

may not participate in the tenders called by the awarding authorities of which they are in-house

providers; and (v) any contracts awarded by an in-house provider in order to perform a task

entrusted will be governed by the TRLCSP.

5 Remedies

5.1 Does the legislation provide for remedies and if so what is the general outline of

this?

Yes. These remedies will depend on the type of contract. For contracts subject to harmonised

regulations, all matters related to the preparation and award of the contract are subject to a

special remedy in procurement matters and a nullity issue (cuestin de nulidad); a contentious-
administrative appeal is also possible. For administrative contracts not subject to harmonised

regulations, all issues related to preparation and award of the contract, its effects and

cancellation, are subject to an administrative appeal and a possible contentious-administrative

appeal. For private contracts not subject to harmonised regulations, all issues related to

contractual preparation and award are examined by the civil courts.

5.2 Can remedies be sought in other types of proceedings or applications outside the

legislation?

Any public sector bodies, authorities and entities other than Public Administrations may use

arbitration proceedings pursuant to the provisions of Act 60/2003, of 23 December to settle

any differences that may arise on the effects, performance and cancellation of their contracts.

5.3 Before which body or bodies can remedies be sought?

Special remedies in procurement matters and nullity issues are filed before the Administrative

Tribunals for Public Procurement (with state or autonomous status). Remedies brought in

administrative channels are filed before the procurement body. Contentious-administrative

appeals are filed before the Contentious-Administrative Courts. Civil claims are filed before the

Civil Courts.

5.4 What are the limitation periods for applying for remedies?

Nullity issues: six months following formalisation of the contract (30 business days in certain

cases).

Special remedy in procurement matters: 15 days following notification of the challenged act.

Administrative remedy: one month following notification of the challenged act.

Contentious-administrative appeal: two months following notification of the challenged act.

Civil claim: the limitation period foreseen in private law to bring a claim, which is generally five

years long.

5.5 What measures can be taken to shorten limitation periods?

It is not possible to adopt measures to shorten these limitation periods.

5.6 What remedies are available after contract signature?

In administrative contracts, all matters related to contractual effects and cancellations are subject

to an administrative remedy and, where appropriate, a contentious-administrative appeal.

In private contracts, all matters related to contractual effects and cancellation are examined by

the civil courts.

5.7 What is the likely timescale if an application for remedies is made?

There is a five-day term in which to settle a special remedy in procurement matters, following

the date when pleadings are made/evidence conducted. The average timescale for the procedure

overall is 40 days.

The timescale in which to settle administrative remedies is one month (motion to set aside,

recurso de reposicin) or three months (remedy of appeal, recurso de alzada); either appeal

may be presumed as dismissed if no express resolution is delivered over this period.

The timescale in which to settle contentious-administrative appeals or civil claims will depend

on each jurisdictional body. The average timescale is between nine and 15 months.

5.8 What are the leading examples of cases in which remedies measures have been

obtained?

The Spanish review system for public procurement decisions is not based on precedent, which is

why there are no particularly relevant cases. In practice, approximately 30% of all special

remedies in procurement matters are upheld, for many different reasons (for example, inadequate

drafting of the lists of terms, lack of reasoning in the awards, misapplication of award

criteria). The percentage of successful administrative remedies and contentious-administrative

appeals is smaller.

5.9 What mitigation measures, if any, are available to contracting authorities?

The contracting authority may waive the execution of a contract for public interest reasons, duly

justified in the proceedings, or may abandon the procedure based on an irremediable

infringement of rules on contractual preparation or the rules governing the award procedure, in

any case before the award.

Subsequently, contracting authorities may only conduct an ex officio review of any null and void

or voidable acts, in accordance with common administrative procedure rules.

6 Changes During a Procedure and After a Procedure

6.1 Does the legislation govern changes to contract specifications, changes to the

timetable, changes to contract conditions (including extensions) and changes to the

membership of bidding consortia pre-contract award? If not, what are the underlying

principles governing these issues?

Though not expressly foreseen in the TRLCSP, it is standard practice for minor changes to be

made to lists of specifications during the award process, as a remedy of errors, granting a new

timescale in which to present bids. Material changes are not allowed, which is why in this case

the parties would need to abandon the procedure underway and hold a new one.

6.2 What is the scope for negotiation with the preferred bidder following the

submission of a final tender?

In general, it is not possible for the bidders to negotiate any terms of the contract. Negotiation is

only possible in a negotiated procedure and in a competitive dialogue procedure, on matters

expressly determined by the contracting authority and in equality and transparency conditions

amongst the bidders.

6.3 To what extent are changes permitted post-contract signature?

Public sector contracts may only be changed if this is foreseen in the lists of specifications or in

the tender announcement, or in any of the situations exhaustively foreseen in the TRLCSP. A

change may not alter the essential conditions of the tender and award, and will be restricted to

introducing any variations that are strictly necessary to cover the objective cause in question;

otherwise, the contract must be terminated and a new tender procedure held.

6.4 To what extent does the legislation permit the transfer of a contract to another

entity post-contract signature?

The contract may be assigned to a third party provided that the technical or personal features of

the assignor have not constituted a determining reason for the contracts award, and if the
assignment does not effectively restrict market competition. The assignee must hold the

necessary capacity and solvency to perform the contract and the assignor must have executed at

least 20% of all contractual services.

Furthermore, a contract will be automatically assigned in the event of a company merger, spin-

off, contribution, transfer of undertakings or branch of activity.

7 Privatisations and PPPs

7.1 Are there special rules in relation to privatisations and what are the principal issues

that arise in relation to them?

A disposal of securities representing the capital stock of publicly owned corporations constitutes

an equity transaction and, as such, is excluded from the scope of application of the TRLCSP; this

situation is regulated by Act 33/2003, of 3 November, on the Property of Public Administrations

and, where appropriate, by autonomous rules on the matter. If the State loses its controlling

position, authorisation from the Council of Ministers will be necessary. The Consultative

Privatisation Board created by Council of Ministers Resolution of 28 June 1996 must necessarily

issue an opinion as to whether the privatisation process and intended sale conform to the

principles of disclosure, transparency and free competition.

7.2 Are there special rules in relation to PPPs and what are the principal issues that

arise in relation to them?

The TRLCSP contemplates collaboration agreements between the public and private sectors as

PPPs, used to carry out particularly complex activities that are executed and financed by the

private partner.

Furthermore, the TRCLSP contemplates institutional PPP formulae in order to select the private

partner participating along with the Administration in the capital stock of the companies

awarding a concession of works and services.

8 Enforcement

8.1 Is there a culture of enforcement either by public or private bodies?

Over the last few years, the existence of effective remedies of appeal against preparatory and

award acts related to certain contracts, as well as successive legislative reforms in matters such

as contractual amendment, disclosure and transparency in procurement procedures, the

prevention of fraud or good governance, have reinforced a strong culture of enforcement in

public and private entities subject to the TRLCSP.

8.2 What national cases in the last 12 months have confirmed/clarified an important

point of public procurement law?

The Spanish system to review decisions in public procurement matters is not based on precedent,

which is why there are no cases worth noting. However, as an example, we may cite Resolution

391/2016 of the Central Administrative Court for Contractual Appeals, which repealed a clause

in the list of specific administrative terms applicable to a contract for the comprehensive supply

and maintenance of high-speed trains, tendered by Renfe Viajeros, S.A. (for an estimated value

of over 2,000 million euros) due to including a bid appraisal factor founded on a territorial link

(completion in Spain of a certain percentage of contractual performance hours). This factor was

deemed contrary to public procurement regulations, as it was biased in favour of local bidders,

thereby entailing discrimination that is incompatible with public procurement regulations.

9 The Future

9.1 Are there any proposals to change the law and if so what is the timescale for these

and what is their likely impact?

In the X legislature (20112015), the Government drew up a preliminary draft bill for the public

procurement act and a special sector contracts act, which eventually completed the public

information stage and was reported on by the State Council. Dissolution of the Spanish

Parliament prevented its processing as a draft bill. The new Government, resulting from the

general elections of 26 June 2016, is likely to take up the necessary work to approve legislation

in the near future, able to implement EU Directives 2014/23, 2014/24 and 2014/25 into Spanish

Law.

9.2 Are any measures being taken to increase access to public procurement markets for

small and medium-sized enterprises and other underrepresented categories of bidders?

Yes. In addition to measures such as dividing a contractual object into lots, the TRLCSP

requires that all public sector bodies, authorities and entities encourage the participation of small

and medium-sized enterprises in public procurement procedures. Act 14/2013, of 27 September,

to back up entrepreneurs and their internationalisation, has amended the TRLCSP in order to

remove any obstacles to entrepreneurial access to public contracts. Furthermore, Act 25/2013, of

27 December, to promote the use of electronic invoicing and creating an accounting register of

public sector invoices, facilitates the access of small enterprises to the public procurement

market.

9.3 Have there been any regulatory developments which are expected to impact on the

law and if so what is the timescale for these and what is their likely impact?

We are awaiting implementation of Act 2/2015, of 30 March, on the de-benchmarking of the

Spanish economy, which will have a significant effect on price updates in public contracts. It is

not possible to provide a timescale for these implementing provisions.

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