Main Features of the Bill on Procurement Procedures in Water, Energy, Transport and Postal-service Sectors
The bill regarding procurement procedures in the water, energy, transport and postal service sectors (hereinafter, the "Bill on Special Sector Procurement"), transposes Directive 2014/25/EU, dated 24 February 2014, on procurement by entities operating in said sectors and Directive 2014/23/EU dated 24 February 2014, on the award of concession contracts, to the extent it is applicable to the objective and subjective scope of the law. This bill will completely repeal Act 31/2007, dated 30 October, on procurement procedures in the water, energy, transport and postal-service sectors.
The main features of the Bill on Special Sector Procurement are:
- With regard to reducing the administrative burden and speeding up public procurement procedures (i) it establishes the general use of responsible statements in all tender procedures (which declaration must conform to the European Single Procurement Document); and (ii) it allows joint procurement by two or more contracting entities when specific situations are given.
- The bill intends to increase competition and provide access to more SMEs; it establishes regulations regarding (i) payment to subcontractors and suppliers, as well as the verification of such payments by the contracting entities; (ii) the division of the contracts into lots; and (iii) the requirements for restricting or performing such contractual division.
- It aims to improve public knowledge and transparency of these procedures, as well as to fight against corruption via the determination of the contract's subject matter. It prohibits fraudulent contractual division and applies procurement bans on any of the contracting entities stipulated under the current Public Sector Procurement Bill (without limiting them to just public law bodies or public companies, as occurred with the prior law).
- Contracting entities are obliged to state their grounds for choosing the tender procedure and two new procedures are established: competitive dialogue procedures and innovation partnerships. The latter is designed for those cases where it is necessary to carry out research and development (for later acquisition by the Administration) when the solutions that are available do not meet the needs of the contracting entity.
- Restrictions on contract amendment have been included; the bill establishes (i) the possibility of terminating the contract during its term when the legally established requirements for amendments are not respected; (ii) a compulsory authorization, when the Council of State or the supervisory or assigned ministry issue an opinion in this regard, for any amendments that affect the initial price by more than 20% in contracts executed with public-sector contracting entities; and (iii) publication of the amendments, in certain cases.
- Public procurement is understood as an instrument for environmental, social, innovation and development policies, which is why the previous requirement of linking the awarding criteria to the subject matter of the contract is now more flexible. The subject matter can not be defined in broader terms, which allows it to take into account social, employment, environmental and innovative aspects. In addition, it encourages the use of execution conditions that make reference to such aspects.
- Preliminary market consultations have been included so that contracting entities can carry out market studies and aim their consultations at the relevant economic operators, in order to prepare the tender and inform operators regarding the plans and requirements for participating in the process.
The bill will be passed via urgent procedure, given that the maximum term for transposing the Directive has now elapsed, thus the term to pass it is half as long. In any case the new law regarding special sector procurement is scheduled to enter into force within four months of its publication.