Ley de Contratos del Sector Público - 9/2017 - 5a parte

Summary of the Law of Public Sector Contracts - Part 5

In this video, the focus shifts to the second book of the law concerning contracts of public administrations. The discussion delves into the preparation and execution of contracts by public entities, emphasizing the necessary documentation and procedures involved.

Preparation and Execution of Contracts

• Public administrations must initiate contract procedures after justifying the need for a contract through prior processing.

• Contract preparation involves compiling a comprehensive dossier containing all relevant documentation, including administrative clauses and technical specifications.

• Upon completing the contracting file, an official resolution is issued approving it and initiating the tender process.

• The resolution is published on the contracting profile to commence the contract, marking a transition from preparatory stages to active contracting processes.

Minor Contracts and Processing Types

• Minor contracts for works under €40,000 or services/supplies under €15,000 require minimal approval processes and quarterly publication on public administration profiles.

• Different processing types (ordinary, urgent, emergency) dictate varying timelines and formalities in contract adjudication processes.

Emergency Contracting Procedures

• Emergency procedures allow for accelerated contracting in cases of immediate necessity due to public interest reasons.

• Urgent procedures expedite timelines but may face extensions based on specific circumstances or legal challenges during formalization phases.

Verbal Emergency Contracts

• Verbal emergency contracts are permissible in critical situations such as natural disasters or national defense emergencies without standard bureaucratic requirements.

• Immediate action is taken in emergencies without credit checks or formalities to address urgent needs promptly.

New Section

In this section, the speaker discusses the timelines and procedures related to emergency contracts and the approval processes for different types of contract documents.

Emergency Contract Timelines

• The execution period for emergency contracts should not exceed one month from the initial call. Failure to start within this timeframe indicates a less urgent situation, leading to standard processing.

• Emergency contract details must be communicated to the Council of Ministers within 30 days, highlighting immediate response requirements for catastrophic events or national defense.

Contract Pliego Types

• Different pliego types exist, including general and specific ones. General clauses are approved by the Council of Ministers, while specific clauses are sanctioned by the contracting body.

• General pliegos contain various annexes tailored to different contract types, guiding the drafting process based on service specifics like surveillance or cleaning.

New Section

This segment delves into the nuances between general and specific administrative clauses in contracts, emphasizing their significance in shaping contractual obligations.

Administrative Clauses Distinction

• General administrative clauses accompany multiple services with extensive annexes, while specific ones cater to individual contract needs with tailored provisions.

• Specific administrative clauses require approval from the contracting body before incorporation into contracts, ensuring alignment with legal standards and adherence to procurement guidelines.

Contract Compliance Importance

• Contracts must align with specified administrative clauses without contradictions. Any discrepancies necessitate consultation with the Administrative Procurement Board for resolution.

• Contracts serve as reflections of bidding processes encapsulated in pliegos, underscoring their integral role in maintaining consistency and legality throughout contractual engagements.

New Section

This part elucidates the approval processes and legal considerations surrounding administrative clause transformations from general to specific contexts.

Approval Procedures

• Modifications between general and specific administrative clauses mandate scrutiny by legal experts for compliance verification before final approval.

• Prior to publication on contracting platforms, specialized legal assessments ensure conformity with regulatory frameworks post-transformation from general to particular administrative clauses.

Legal Review Significance

• Legal reviews play a pivotal role in confirming contractual adherence to statutory norms post-administrative clause adjustments, safeguarding against potential legal infringements during contract execution.

Contract Specifications and Equivalents

In this section, the speaker discusses the importance of detailing supply contracts in technical specifications. They delve into Article 126.6, emphasizing the concept of equivalents in supply contracts to prevent favoritism towards specific brands or products.

Contract Specifications and Equivalents

• Detailed supply contracts outline specifics like type, quantity, and quality in technical specifications.

• Article 126.6 highlights the need for equivalents in supply contracts to avoid favoring specific products or brands.

• Technical specifications should not be tied to a particular origin, brand, or production method unless absolutely necessary.

• The use of equivalents is crucial when precise descriptions of contract items are challenging.

• Illustrative example: Crafting technical specifications for toilet paper supply involves specifying details like length, layers, biodegradability, and packaging.

Adjudication Procedures and Fair Treatment

This segment focuses on the principles governing adjudication procedures to ensure fair treatment of bidders. It emphasizes equal treatment, transparency, and competition safeguarding during the procurement process.

Adjudication Procedures and Fair Treatment

• Adjudicating bodies must treat all bidders equally without discrimination.

• Transparency and proportionality principles guide adjudication processes to uphold fairness.

• Contracts should not circumvent publicity requirements or manipulate competition unfairly.

• Adjudication primarily employs multiple criteria ensuring the best value proposition rather than solely focusing on price.

• Criteria include quality-price ratio assessment based on objective factors alongside subjective judgment elements.

Pre-procurement Information Disclosure

The discussion centers on pre-procurement information disclosure as per Article 134. It underscores the significance of providing advance information to potential bidders for harmonized regulation compliance.

Pre-procurement Information Disclosure

• Procuring entities can release preliminary notices to gather insights from potential bidders before formal procurement processes begin.

• Advance information disclosure is limited to contracts subject to harmonized regulations exceeding specified monetary thresholds.

• Harmonized regulation applies to contracts meeting certain financial criteria for works, services, or supplies procurement.

Contract Procedures Overview

In this section, the speaker discusses contract procedures, focusing on information dissemination prior to contracts and the significance of pre-contractual information for up to 12 months.

Pre-Contractual Information Dissemination

• Pre-contractual information is crucial and must be made available for up to 12 months before the contract.

• The information is published either in the Official Journal of the European Union or in the contracting entity's profile.

Benefits of Early Information Dissemination

• Providing early information allows interested companies ample time to understand the contracting entity, contract types, services, supplies, quality standards, quantities required, etc.

• This practice facilitates reducing proposal submission deadlines in open and restricted procedures.

Period of Pre-Contractual Training

• The period of pre-contractual training specified in Article 134 applies only to contracts subject to harmonized regulation.

• This training period is a maximum of 12 months and must be published in the Official Journal of the European Union or in the contracting entity's profile.

Adjudication Procedures

This section delves into various adjudication procedures within contracts and provides a brief overview without detailed exploration.

Types of Adjudication Procedures

• Different adjudication procedures exist with varying requirements and processes.

• The speaker mentions that they will not delve into all procedures but provide summaries for each type.

Open Procedure Adjudication

Focuses on open procedure adjudication within contracts where any entrepreneur can submit a bid without negotiations on contract terms.

Open Procedure Details

• In an open procedure, any entrepreneur meeting requirements can submit a bid without negotiation as all terms are clearly defined by the administration.

• Negotiations are excluded as administration sets out terms clearly in administrative and technical clauses; acceptance is based on compliance with these terms.

Restricted Procedure Adjudication

Discusses restricted procedure adjudication where only selected entrepreneurs meeting specific criteria can submit proposals after being invited by the contracting authority.

Restricted Procedure Details

• Only entrepreneurs meeting specific criteria can submit proposals after being selected based on their request and solvency assessment by the contracting authority.

Contract Law Procedures Overview

In this section, the speaker delves into various procedures related to contract law, including competitive dialogue, innovative partnership procedures, project contests, and electronic auctions.

Competitive Dialogue Procedure

• The competitive dialogue procedure involves engaging with selected candidates to develop solutions that form the basis for submitting offers.

• Entrepreneurs can request participation in this procedure by dialoguing with potential bidders until reaching a final solution.

• Conditions in the competitive dialogue procedure may involve incentives or compensations that impact the estimated value and contract price.

Innovative Partnership Procedure

• The innovative partnership aims at developing innovative products, services, or works and subsequently procuring these from participants based on agreed performance levels and costs.

• Any company can submit a bid in this procedure if there are a minimum of three bidders involved.

Project Contest Procedure

• The project contest procedure focuses on obtaining main plans or projects in architecture, urban planning, engineering, and data processing fields.

• Lastly, the electronic auction is not an awarding procedure but a method used within open, restricted, or negotiated procedures to evaluate bids based solely on price criteria.

Conclusion and Next Steps

• After discussing various contract law procedures like competitive dialogue and project contests, the speaker concludes by summarizing key points covered so far.