“The transposition of the European Directives on Public procurement “EUROPEAN PUBLIC PROCUREMENT” ESCL Annual Conference. Bucharest. Faculty of Law October 26th 2018 “The transposition of the European Directives on Public procurement in Spain” Chantal Moll de Alba Professor of Private Law University of Barcelona cmolldealba@ub.edu

Transposition to the spanish legal system: FORMER EU DIRECTIVES AND SPANISH TRANSPOSITION  Directive 2004/18/CE,on the coordination of procedures for the award of public works contract, public supply contracts and public service contracts Directive 2004/17/CE, coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors Transposition to the spanish legal system:  Ley 30/2007, de 30 de octubre, de Contratos del Sector Público and Texto refundido de la Ley de Contratos del Sector Público, Real Decreto Legislativo 3/2011, de 14 de noviembre–  Ley 31/2007 de 30 de octubre, sobre procedimientos de contratación en los sectores del agua, la energía, los transportes y los servicios postales

EUROPEAN DIRECTIVES OF 2014 There are 3 main Directives approved in 2014, on public procurement Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC  Directive 2014/25/EU of the European Parliament and of the Council of 26 February 2014 on procurement by entities operating in the water, energy, transport and postal services sectors and repealing Directive 2004/17/EC  Directive 2014/23/EU of the European Parliament and of the Council of 26 February 2014 on the award of concession contracts

to increase the efficiency of public spending 2014 EU DIRECTIVES GOALS to review and to modernize the current rules on public procurement to increase the efficiency of public spending to increase the participation of Small and Medium enterprises (SMEs) in public procurement. (Measure highlighted in the Europe 2020 Strategy)   To include different points highlighted by the Jurisprudence of the Court of Justice of the European Union regarding public procurement

Ley 9/2017, de 8 de noviembre de Contratos del Sector Público SPANISH ACT 2017 ON PUBLIC PROCUREMENT Ley 9/2017, de 8 de noviembre de Contratos del Sector Público GOALS: To achieve greater transparency in public procurement To achieve a better value for money and efficiency in public spending To respect the principles of equality, non-discrimination, proportionality and integrity.

Environmental, social and innovation criteria Environmental: environmental management certificates are required from bidding companies, as a condition of technical solvency. Social: a ban to conclude public contract from companies of more than 50 workers which do not fulfill the requirement that at least 2 percent of employees of companies with 50 or more workers are workers with disabilities. Innovation: new procurement procedure called "association for innovation" foreseen for those cases in which it is necessary to carry out research and development activities regarding works, services and innovative products, for their subsequent acquisition by the Administration.

“Abnormally low tenders” Contracting authorities will reject ”abnormally low tenders” if they prove that they are due to the non-compliance of environmental, social or labour legal provisions.

LOWER BUREAUCRACY FOR TENDERERS The new legal text is in favor of electronic contracting which is in Spain already mandatory in some cases (in Spain they anticipate the Directive dead line) With the aim of simplifying and reducing administrative burdens, the use of the responsible statement is maintained and its content is regulated in a manner consistent with the European Single Procurement Document (ESPD). Commission Implementing Regulation (EU) 2016/7 of 5 January 2016 establishing the standard form for the European Single Procurement Document

PROCUREMENT PROCEDURES * There is a simplified open tender procurement procedure (procedimiento abierto simplificado) It will be applicable up to certain thresholds It is a very agile procedure that allows the contract to be awarded within a month from when the tender was called New rules have been settled to respect the duty of publicity and transparency * The restricted procedure is especially suitable for the award of contracts whith an intellectual object, such as engineering and architecture services.

SPECIAL RULES TO BENEFIT SMEs * it is compulsory for the contracting authority, in the contracts that most frequently go to outsourcing, such as works and services of a certain amount, to check the strict compliance of the payments made by the main contractor to the subcontractor * There is a new solvency criterion that the contractor of the public contract will have to justify, which is complying with the current regulations on payment to suppliers. This measure aims that the SMEs with which the contractor subcontracts your services are paid on time.

RULES AGAINST CORRUPTION Contracting authorities are obliged to take the appropriate measures to fight against fraud, favoritism, corruption, and to prevent conflicts of interest that may arise in the tendering procedures. There is a new long list of prohibitions to contract for those companies that have been convicted for a crime or that do not fulfill the social, labour or tax law. A former procurement procedure without publicity has been repealed. It was a usual and simple procedure but not transparent. New state institutions have been created in order to check the compliance of EU Directives and national regulation (Junta Consultiva de Contratación pública, Oficina de Supervisión de la contratación)

RULES ON PUBLICITY European regulation on publicity has been included in the Spanish act: at the end of the Spanish act there is an Annex with the information that should appear in the different notices and that has been standardized in the Commission's Implementing Regulation 2015/1986, of November 11, 2015, establishing standard forms for the publication of notices in the field of public procurement and repealing Implementing Regulation (EU) No 842/2011. https://eur-lex.europa.eu/legal-content/GA/TXT/?uri=CELEX:32015R1986 Creation of a Registry of Public Contracts, in which thecontracts awarded by the public sector entities will be registered. It is compulsory to communicate information related to any contract concluded for an amount equal to or higher than five thousand euros .

Thank you very much Chantal Moll de Alba cmolldealba@ub.edu