EU Public Sector Contracting Guide: Procedures & Regulations

Posted on Aug 18, 2024 in Law & Jurisprudence

EU Public Sector Contracting: A Comprehensive Guide

TEMA 12: Key Concepts and Definitions

Contracting Authority

Public sector entities subject to EU directives.

Contract Specification

  • Contratante Administration: Public sector contracts subject to administrative law and jurisdiction.
  • Contratante Other Public Sector Entities: Law of contracts in preparation, award, and civil code effects, compliance, and termination. Contentious-administrative and civil court jurisdiction.

Harmonized Contracts

Contracts exceeding €5 million, subject to harmonized regulation.

Contractor Capacity

Natural or legal persons with full legal capacity, registered in the commercial register, demonstrating financial solvency and technical expertise, and not subject to prohibitions or incompatibilities.

Contractor Classification

Qualification awarded to companies based on economic and technical expertise for bidding on government works exceeding €350,000. Awarded by the advisory board, indefinite, and subject to suspension for conviction or inconsistency.

Warranties

  • Provisional: Stated in private contract documents. 3% of the base budget, retained by the contractor.
  • Definitiva: 5% of the contract price, ensuring compliance with contractual obligations. Returned after the warranty period.
  • Complementaria: 5% of the award, applied when the administration perceives a particular risk.
  • Global: Standard warranty for contractors with multiple government contracts.

Forms of incorporation: Cash, government bonds, bank guarantee, insurance bond.

TEMA 13: Works Classification and Award Procedures

Classification of Works

  1. First establishment, alteration, or major overhaul.
  2. Simple repair, restoration, or rehabilitation.
  3. Preservation or maintenance.
  4. Demolition.

Actions Prior to Award

Design, monitoring, processing, approval, and project layout.

Tender Committee

Composed of five members from the contracting authority, including at least one legal and one economic profile expert. Analyzes proposals (administrative data and financial offer) and selects the winning bid based on predefined criteria.

Open Procedure

Any employer can submit a proposal based on one or more criteria. Two envelopes for submission, followed by bid opening and award. Within 10 days, the contractor submits supporting documents for tax and social security compliance and provides the final guarantee. Five business days for monitoring and definitive adjudication. Non-harmonized contracts: 15 working days for formalization. Harmonized contracts: 15 days for potential appeals, followed by formalization within 5 calendar days.

Restricted Procedure

Only pre-selected entrepreneurs based on creditworthiness can submit proposals. Application submission, selection by the contracting authority, invitation to tender, and proposal submission.

Negotiated Procedure

  • Advertising: Published in the contractor’s profile (irregular or unacceptable propositions, experimental works, contracts under €1 million).
  • No Advertising: The contracting authority contacts at least three companies (limited competition, complementary work, repetitive work, contracts under €200,000).

Competitive Dialogue

Used for collaborative public-private sector contracts. The contracting authority selects three candidates for dialogue to develop solutions. The best solution is chosen, and selected participants submit a final offer. The contract is awarded based on the economically most advantageous criteria.

TEMA 14: Contract Execution, Payment, and Termination

Layout Verification

Maximum one month from contract conclusion to sign the layout verification minutes. Work commences the following day.

Certifications

Monthly certifications issued for completed work, paid within two months of issuance.

Lump Sum

Payment for existing works without unit pricing.

Price Closed

Unchanged contractor price. Contract modifications for deficiencies or omissions are not paid, but modifications for new needs or functionalities are.

Price Review

Adjusts payment amounts to market fluctuations without contract modification. Applicable after one year of work and a price increase exceeding 20%.

Termination of Employment

  • For Compliance: Normal completion of work.
  • With Resolution: Requires a legal service report, contractor’s opinion, and potential consultation with the Council of State.

Incidents Development

Circumstances requiring file processing to interpret or modify contract terms.

Suspension of Works

  • Withdrawal of Execution: Contract termination, entitling the contractor to compensation or payment for completed work plus 6%.
  • Non-Final Suspension: Entitles the contractor to compensation. Becomes final after six months without work commencement or eight months with commenced work.

Assignment

Transfer of all rights and obligations from the assignor to the assignee under a private contract, with the assignee becoming responsible before the administration.

Outsourcing

Private contract where the contractor delegates specific work parts to a third party (subcontractor). The subcontractor is responsible to the contractor, who remains responsible to the administration.