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by Xavier Junquera 

Nearly two years after the deadline established by the European Commission, the new Law 9/2017, of 8 November, on Public Sector Contracts, enters into force today, transposing into Spanish law Directive 2014/24/EU on public procurement, as well as the majority of Directive 2014/23/EU on the award of concession contracts, which should have been transposed before April 2016.

It should be noted that those files opened before the entry into force of this Law will be governed by previous legislation (“open” is understood as those for which calls have been published or, in negotiated procedures without publication, for which the specifications have been approved). However, special appeals regarding procurement may be made under the new appeal regime foreseen in Law 9/2017, against actions carried out following the law’s entry into force.

As is generally known, one of the main aims of this Law is to achieve greater transparency and establish the basis to prevent and rooting out corruption. Thereby, more publicity must now be given to a great many more public administration contracts and actions, among which are included small contracts and the majority of negotiated contracts (the general rule has been reversed and negotiated contracts without publication based on price have been eliminated). The in-house providing and contractual changes, among others, have also to be published. This has been accompanied by a wider scope for actions open to special appeal in order to achieve not only greater transparency, but also to make the sector itself oversee the contracting authorities and dispute those actions contrary to Law.

To ensure the transparency and the accessibility of information to any interested party, the contracting authorities must publish this information on the Public Sector Contracts Platform (in Spanish, “PCSP”), or its equivalent in the relevant Autonomous Community. In any event, the Autonomous Community platform and the PCSP must be linked. At the time of writing, according to the information available on the PCSP website, all Autonomous Community platforms were linked with the PCSP, except Aragon and Navarre. It must be noted that not publishing the call to tender on the relevant PCSP profile constitutes grounds for invalidity of contracts and, in addition, the deadline to submit offers starts only when the call is published on the PCSP.

It must be highlighted that e-tendering is now compulsory, provided that the contracting authorities are prepared for it, and that, from September 9, 2018, companies wishing to participate in simplified open procedures (created by this Law) must be registered on the Official Register of Bidders and Classified Companies.