Spanish Congress has finally approved the new public procurement law, although it has yet to be published in Spain's Official State Journal (BOE). Most of the provisions of the new law will enter into effect four months after it is published in the BOE.
Among the many new elements brought in by the law, it applies a profound reform of the Spanish system of tendering concessions; introduces a new form of contract (services concession); will now apply to political parties, trade unions and business organisations; creates a new open and simplified process; and it establishes a need to justify not dividing up public contracts into lots.
OTHER NEWS OF INTEREST
Preparatory steps are underway to retender the financially impaired motorways
As announced by Spain's Development Minister, the re-tendering of the financially impaired toll motorways (R-2, R-3 and R-5, R-4, M-12, AP-41, AP-36, AP-7 Alicante Ring-road and AP-7 Cartagena-Vera) is now underway. On 4 October, the BOE published an announcement to tender two services contracts to conduct a demand study, devise a tariffs system, to draft terms and conditions and the financial viability study for the tendering together or in different lots of contracts for the conservation, operation and maintenance of the motorways.
On 19 October, the Development Minister, igo de la Serna, appeared before Spanish Congress to explain the new Extraordinary Road Investment Plan
The initiative, to be implemented via a public-private partnership model, will involve 5 billion in investments to add more than 2,000 kilometres to the Spanish road network. It will be financed by the European Investment Bank (40%), banks and investment funds (40%) and concessionaire companies (20%). The plan is to tender and award the contracts in 2018 and 2019 for a period of 30 years. Once construction on the infrastructure has been completed, the concessionaires will receive a monthly payment (in the form of an availability payment).
Spain's Markets and Competition Commission (CNMC) establishes the criteria for new operators to offer international rail passenger services
In its Resolution dated 20 September, the CNMC approved the criteria that will be used to examine the "principal purpose" of international rail passenger services that will be provided by operators other than Renfe.
The CNMC has established that the following criteria must apply for a route to constitute an international service:
At least 30% of the revenues and traffic must have its origin-destination abroad.
At least 20% of the route must be outside Spain.
The European Court of Justice confirms that the eligibility of a tenderer may be challenged before the award
On 5 April 2017, the ECJ delivered its preliminary ruling on the incompatibility between article 1.1 and 2.1 a) and b) of Directive 89/665/EEC and article 310.2 of Law 30/2007. The ECJ considered that an contracting authority's decision to allow the participation of a tenderer may be challenged without having to wait for the award. And this insofar as Directive 89/665/EEC imposes on the Member States an obligation to "take the measures necessary to ensure that [...] decisions taken by the contracting authorities may be reviewed effectively and, in particular, as rapidly as possible".
The Central Administrative Court on Contractual Resources (TACRC) dismisses a special challenge due to the direct application of Directive 2014/23/EU, on the award of concession contracts
In its Ruling 778/2017, dated 8 September 2017, the TACRC understood that article 10 of the EU's concession contracts Directive, as yet not transposed in Spain, applied directly to the case in question. As a result, the TACRC decided that it was unviable to lodge a special challenge in the case of a public procurement process for services concessions (service management) in the public passenger transportation sector, in the sense of Regulation (E) no. 1370/2007, and decided to reformulate the challenge lodged as an appeal for reconsideration before the contracting authority.
Contact: Ignacio Paz Partner +34 91 423 4005 | Miguel Riao Partner +34 91 423 4004 | Iria Calvio Of Counsel +34 91 423 4022
Herbert Smith Freehills LLP 2017
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