Procurement process

Relevant procedure

What procedures normally apply to a PPP procurement? What evaluation criteria are used to award a PPP transaction?

The government party decides on the procedure to grant a PPP according to the law. As a general rule, it applies an open or restricted procedure. By means of those methods, every interested bidder (in the open procedure) or some bidders shortlisted by the government party, may submit their proposal, and any negotiations of contract terms with the bidders shall be excluded. However, in some cases expressly provided for by law, a negotiated procedure may be used. Using this method, the public administration selects the contractor legitimately, after consulting with various candidates and negotiating the contract terms with one or several of them. As an exception, the competitive dialogue may be applied for particularly complex PPPs.

The award decision shall select the most economically advantageous tender. The evaluation criteria to be used by the government party rely on the object of the PPP, such as the quality provided, the price, the execution time and environmental issues, etc. When only one awarding criterion is used, this must be that of the lowest price.

Consideration of deviating proposals

May the government consider proposals to deviate from the scope or technical characteristics of the work included in the procurement documentation during the procurement process, without altering such terms with respect to other proponents? How are such deviations assessed?

The government may consider proposals to deviate from the scope or technical characteristics of the work if it is foreseen in the tender documentation. This shall specify the elements and the conditions under which a proposal may vary or improve the characteristics of the work proposed by the government.

Unsolicited proposals

May government parties consider unsolicited proposals for PPP transactions? How are these evaluated?

The government may consider unsolicited proposals; however, public contracts shall be awarded according to the proceedings foreseen by the law, for the purposes of guaranteeing the principles of transparency, publicity, competition, equality and non-discrimination.

Government stipend

Does the government party provide a stipend for unsuccessful short-listed proponents or otherwise bear a portion of their costs?

Bidding costs are borne by the unsuccessful proponent. Nevertheless, exceptionally, if the government party grants a bidder a PPP based on a feasibility study (a document required to award a PPP) designed by another bidder, the latter is entitled to compensation.

Financing commitments

Does the government party require that proposals include financing commitments for the PPP transaction? If it does not, are there any mechanisms during the procurement process to ensure that the applicable PPP transaction, once awarded, is financeable?

The Spanish Procurement Law does not specifically foresee that the proposal includes financing commitments for the PPP transaction. Nevertheless, it is common that the tender documentation requires such financing commitments to be submitted along with the proposal.

Legal opinion

May the government ask its counsel to provide a legal opinion on the enforceability of the PPP agreement? May it provide representations as to the enforceability of the PPP agreement?

In most cases, the government does not have external counsel (ie, law firms) but is advised by its in-house legal department. The specific administrative clauses on which the PPP is based are subject to a report issued by the aforementioned legal department of the government party. However, such a report is issued for internal purposes (ie, there is not a legal opinion). The enforceability of the contract is established by law and there are no further representations made by the government.

Restrictions on foreign entities

Are there restrictions on participation in PPP projects by foreign entities? May foreign entities exercise control over the project company?

There are no restrictions on participation in PPP projects by foreign entities and they may exercise control over the project companies. Companies within the EU shall evidence their contracting capacity by registering with the relevant registry according to the regulation of the corresponding country. Non-EU companies prove their contracting capacity through a report evidencing reciprocity with respect to Spanish companies. Such report is not required for companies from member states that are a party to the Agreement on Government Procurement.