Ley Contratos del Sector Público - SUPUESTO DE CONTRATACIÓN - Ejercicio teórico/práctico - 6a Parte

Creating Administrative Contracts: A Step-by-Step Guide

Introduction to Contract Creation

• The video introduces the process of creating administrative contracts, emphasizing the need for imagination and practical engagement.

• Viewers are encouraged to envision themselves working in a contracting unit within a ministry, setting the stage for practical application of learned concepts.

Initial Steps in Contract Development

• The first task is to create an "expediente" (file), which will serve as a record of all documentation related to the contract.

• Instead of using digital tools, viewers are instructed to use paper, folding it to create a cover page and space for documentation notes.

Defining Contract Parameters

• Participants must choose a type of contract (service, supply, or work). An example provided is a service contract for maintaining natural plants at an office building.

• The object of the contract is defined according to Article 99; in this case, it's maintenance services for natural plants.

Duration and Pricing Considerations

• The duration of the example contract is set at one year with two possible extensions, totaling up to three years.

• Pricing details are discussed based on Articles 100 and 101. The base price without VAT is €50,000; including VAT brings it to €60,500.

Estimating Total Contract Value

• The estimated total value of the contract over its potential duration (including extensions) amounts to €150,000.

• All necessary parameters—object definition, duration, and pricing—are established before moving forward with formalizing the contract.

Initiating Documentation Phase

• At this point in the process (referred to as "phase garage"), no external parties are involved; work continues independently on preparing documentation.

• The first phase begins with opening the expediente and gathering required documents while posing critical questions about the type of procedure being followed.

Understanding Types of Procedures

• Different types of adjudication procedures are outlined based on monetary thresholds: minor contracts under €15,000 and simplified open procedures between €15,000 and €60,000.

Understanding Contract Regulations and Procedures

Overview of Simplified Contracts

• The discussion begins with the adjustment of thresholds for simplified contracts, moving from €60,000 to €38,999.99, which is below the €39,000 mark.

• It highlights that there has been a modification in the pricing thresholds for simplified contracts since 2021, affecting how these contracts are categorized.

• The speaker notes that contracts valued between €60,000 and €138,999.99 fall under an open simplified procedure but must adhere to harmonized regulations.

Specific Examples of Contract Types

• An example contract for maintenance services is cited with an estimated value of €150,000; this contract is classified as open and subject to harmonized regulation.

• For construction projects, different thresholds apply: contracts under €40,799.99 are considered lower-value simplified procedures.

Understanding Budgetary Considerations

• The importance of knowing budget classifications is emphasized; understanding where funds are allocated (chapter/article/concept) is crucial for managing expenditures effectively.

• The necessity for documentation during the initial phase of contracting is discussed; justification according to Article 26 is required to validate the need for external contracting due to lack of internal resources.

Financial Planning and Execution

• A reserve credit (RC) must be established based on anticipated spending within the fiscal year; if execution starts in subsequent years, an anticipatory RC should be created.

• Clarification on budget classification indicates that proper categorization ensures compliance with financial regulations when executing contracts.

Key Questions Before Proceeding with Contracts

• Important questions arise regarding whether ministerial authorization is needed based on contract value; specifically referencing Article 323 concerning contracts equal or exceeding €12 million.

• Classification requirements for companies bidding on construction projects are outlined; mandatory classification applies when project values reach or exceed half a million euros per Article 77.

Pre-announcement Procedures

• Discussion about making prior announcements as per Article 134 indicates that such announcements can only be made for harmonized regulated contracts.

• The speaker explains that prior announcements allow up to a 12-month lead time for European companies to prepare before bidding on upcoming projects.

Guarantee Provisions in Bidding

• A provisional guarantee percentage based on the base bid amount (excluding VAT), which was noted as being around €50,000 in this context.

Contractual Procedures and Regulations

Provisional Guarantees in Contracting

• A provisional guarantee of 3% is required from companies bidding for contracts, calculated based on the base budget of €50,000, resulting in a guarantee of €1,500.

• Article 44 outlines that contracts exceeding €3 million or €100,000 for services/supplies are subject to special recourse procedures.

Special Recourse Procedures

• Companies can present a special recourse at any point during the bidding or awarding process if their contract value exceeds specified thresholds.

Price Revision Conditions

• Price revisions are regulated under Article 103 and apply to specific types of contracts such as construction and energy supply.

• Contracts with an investment recovery period equal to or greater than five years may also allow for price revisions; these must be clearly defined in the administrative clauses.

Limitations on Price Revisions

• The first two years and up to 20% of the contract value must pass before initiating price revisions unless it’s a service concession or electricity supply contract.

Contract Processing Types

• Contracts will typically follow ordinary processing rules unless classified as urgent; all documentation must comply with legal standards.

Lotes and Administrative Clauses

Consideration of Lotes in Contracts

• If creating lots within a contract is deemed unnecessary due to complexity (e.g., maintenance of natural plants), justification should be documented.

Documentation Preparation

• The preparation involves drafting both administrative clauses and technical specifications detailing contract duration, object, valuation methods, etc.

Approval Process for Clauses

• The approval of administrative clauses and technical specifications falls under the responsibility of the contracting authority prior to adjudication.

Phases in Contracting Process

Completion of Initial Phase

• The initial phase concludes with documentation signed by the contracting authority alongside expenditure approval.

Transitioning Between Phases

• Following completion of phase one, phases two (publication) and three (licitation) proceed together due to their interrelated nature.

Contracting Procedures and Regulations

Overview of Contract Publication Requirements

• The process begins with the formalization of contracts, which includes approval for expenditures and incorporation of invoices. It is essential to contract a company capable of fulfilling the requirements.

• Contracts are published in the contractor's profile, with specific procedures for different amounts. For lower amounts (under 159,000), simplified open procedures are utilized.

• When subject to harmonized regulations, such as maintenance of natural plants, publications must occur in the Official Journal of the European Union (OJEU) before any other platforms.

Phases of Publication

• The publication phase involves multiple steps: first in OJEU, followed by local profiles. This sequence ensures compliance with regulatory frameworks.

• Once published online, all stakeholders can access contract information. This marks a transition from internal processes to public visibility.

Characteristics of Different Procedures

• Each type of procedure has unique characteristics; for example, simplified contracts have specific timelines and criteria that differ based on their classification.

• For simplified contracts under 159,000 euros, companies must be given at least ten business days to submit proposals. Notably, there is no definitive guarantee required for these smaller contracts.

Evaluation and Award Process

• Proposals will undergo automatic evaluation using electronic systems that quickly assess pricing against set criteria. This streamlines decision-making significantly.

• The contract formalization can occur swiftly after award notifications due to the simplified nature of these procedures aimed at reducing bureaucratic delays.

Special Considerations for Higher Value Contracts

• For higher-value contracts exceeding 159,000 euros but still within simplified categories, a value judgment may apply but cannot exceed 25% of total scoring unless it pertains to intellectual services where it can reach up to 45%.

• In terms of participation timelines: service supply submissions require at least 15 calendar days while construction projects necessitate a minimum of 20 days.

Registration and Guarantees

• All bidders must be registered in official registries to ensure they meet eligibility criteria without delay during evaluations.

Electronic vs. Paper Submissions in Bidding Processes

Benefits of Electronic Submission

• The option for companies to submit bids electronically can reduce submission deadlines by five days, shortening a 35-day period to 30 days.

• A prior announcement allows for a reduced bidding period from 30 days to just 15 days, facilitating quicker responses from bidders.

Importance of Prior Announcements

• By providing advance notice (up to 12 months), companies have time to prepare their documentation, which further reduces the bidding timeline.

• Clear organization of information regarding pricing and special characteristics is essential for transparency in the bidding process.

Rules Governing Bid Submissions

Single Proposal Rule

• Each bidder may only submit one proposal, either individually or as part of a consortium; multiple submissions lead to disqualification.

Acceptance of Terms

• Submission implies full acceptance of the terms outlined in the administrative documents; no negotiations are permitted post-submission.

Confidentiality in Bids

• Bid proposals remain confidential to prevent competitors from adjusting their offers based on others' pricing strategies.

Structure of Bid Proposals

Components of Submission

• Proposals may consist of multiple envelopes: one for personal company details, another for economic offers, and possibly a third for value judgments.

Declaration Requirements

• Companies must provide a responsible declaration detailing financial capacity and any prohibitions against contracting as per Article 140 regulations.

Phases in the Bidding Process

Tracking Participation

• It’s crucial to document the number of participating companies by the end date set for bid submissions; this data informs subsequent phases.

Transitioning Between Phases

• Completion of bid submission marks the transition into Phase 4: Adjudication, which is critical in determining contract awards.

Timelines and Criteria for Adjudication

Key Deadlines Post-Bid Submission

• After bid submission closes, there is a maximum period of 20 days allowed before opening proposals publicly.

Evaluation Criteria

• The evaluation focuses on identifying the most economically advantageous offer based on price and other criteria; if multiple criteria exist, additional time may be required for assessment.

Conclusion on Adjudication Process

Contract Awarding Process Overview

Role of the Contracting Table

• The contracting table, as outlined in Article 326, is responsible for calculating and reviewing bids submitted by bidders.

• It operates within a timeframe of 20 days from the deadline for bid submission to the proposal for contract awarding.

Composition of the Contracting Table

• The contracting table is composed of a president, members (vocales), and a secretary, with at least one legal service representative and an auditor included among the vocales.

• This minimum composition ensures that all necessary expertise is present during the evaluation process.

When is a Contracting Table Required?

• A contracting table must be established when open, restricted, negotiated with publicity procedures, competitive dialogue, or innovation partnerships are involved.

• In cases where negotiations occur without publicity, having a contracting table is optional; it depends on the decision of the contracting authority.

Functions of the Contracting Table

• The main functions include qualifying documentation presented at bid openings and evaluating bidder proposals based on predetermined scoring criteria.

• The table assesses offers that appear abnormally low to determine if they can justify their pricing before proceeding with evaluations. If not justified, those offers are excluded from consideration.

Public Opening of Bids

• During public sessions, representatives from bidding companies are invited to witness the opening of envelopes containing their financial proposals. This can also be conducted electronically but often occurs in person.

• Each bid's economic offer is read aloud publicly to ensure transparency in how bids are evaluated and scored by the contracting table.

Post-Evaluation Steps in Contract Awarding

Proposal Submission Process

• After evaluating bids and creating a ranked list based on scores, this list is forwarded to the contracting authority for final decisions on contract awards. The authority may choose to deviate from this order but must provide substantial justification for doing so.

Documentation Requirements for Selected Bidder

• Once selected as provisional awardees, bidders must submit additional documentation within specified timeframes: ten business days for open contracts or seven days for simplified processes post-notification of their selection as preferred bidders.

Importance of Updated Documentation

• Bidders need to resubmit proof of their capacity to contract since circumstances may have changed since their initial application (e.g., new legal issues). This includes providing definitive guarantees amounting to 5% of their awarded contract value as part of compliance checks before finalizing contracts.

Timeline Recap

• Key timelines include:

• Two months allowed initially for bid submissions.

• Fifteen days or two months allocated for proposal evaluations.

• Ten business days or seven days given post-selection for submitting required documentation including guarantees which reflect changes in company status since initial submission dates.(2268)

This structured overview captures essential elements regarding roles and responsibilities within the contract awarding process while emphasizing critical timelines and procedural requirements necessary for compliance and transparency throughout procurement activities.

Adjudication Process in Contracting

Overview of Provisional and Definitive Contracts

• Discussion on extending provisional contracts to definitive ones or creating new definitive contracts based on preferences, with a deadline of ten days for submission.

Documentation Requirements and Penalties

• If the first proposed company fails to present required documentation, it moves to the next candidate. A penalty of 3% can be imposed on the budget base if documentation is not submitted.

Timelines for Adjudication

• After receiving documentation from the first company, an additional five working days are allocated for adjudication before notifying other candidates.

Notification and Formalization Steps

• Candidates are notified within fifteen days post-adjudication. The process includes various timelines depending on whether it's a simplified or open procedure.

Finalizing Contracts and Legal Obligations

• Once a contract is awarded, it must be formalized through administrative documents. This marks the transition into phase five of contracting.

Formalization and Resource Management

Importance of Document Formalization

• Emphasis on formalizing contracts as essential for legal validity; all necessary documents must be prepared accordingly.

Waiting Period for Appeals

• A waiting period of fifteen working days exists after notifying bidders about adjudications, allowing time for any special appeals regarding procurement processes.

Urgency in Contract Signing

• Following the appeal period, there are five working days to finalize contracts once no appeals have been filed.

Submission to Oversight Bodies

Reporting Requirements Post-Contract Award

• Contracts exceeding certain financial thresholds must be reported to oversight bodies like the Tribunal de Cuentas within three months post-formalization.

Financial Threshold Guidelines:

• Specific amounts trigger reporting: €600,000 for works/concessions, €450,000 for supplies, and €150,000 for services/administrative contracts.

Conclusion: Mastery in Administrative Contracting

Capability Development in Contracting Units

• Encouragement that understanding these phases equips individuals to effectively work within administrative contracting units.

Recommendations for Practice:

Contracting Procedures Overview

Phases of the Contracting Process

• Phase 1: Initiation

The process begins with defining the object, duration, procedure, and administrative specifications including technical prescriptions.

• Phase 2: Publication

This phase involves publishing in the official European journal or relevant profile as necessary.

• Phase 3: Bidding

Companies are given a specific timeframe to submit their participation requests. The number of companies that have submitted bids is also noted.

• Phase 4: Awarding Contracts

This complex phase includes opening proposals within a set period (20 days), calculating bids by the contracting committee, and making an award proposal within fifteen days to two months based on criteria.

Documentation and Finalization

• Documentation Requirements

Proposals must include supporting documentation submitted within ten to seven business days depending on whether it’s an open or simplified procedure. A definitive guarantee of 5% of the awarded amount is also required.

• Final Steps in Contract Formalization

After awarding contracts, if no special appeal exists, formalization occurs within fifteen business days. If there is an appeal possibility, additional waiting periods apply before finalizing contracts.

Conclusion and Future Content