Negotiated procedure in public tenders in Spain

The procedure to conclude any contract between a Spanish Public Administration and a private company is subject to a particular legal regime.

Specifically, Law 9/2017, of November 8th, on the Public Sector Contracts, which transposes the Directives of the European Parliament into the Spanish legal system, and of the Council 2014/23/EU and 2014/24/EU, of February 26, 2014 (hereafter referred to as the Public Sector Contracts Act) aims to regulate the legal regime applicable to the execution, fulfilment and termination of public contracts, considering their institutional purposes and public nature.

In addition to the different types of public contracts (articles 12 to 18: construction contract; public works concession contract; service concession contract; supply contract; and service contract and mixed contract), the Public Sector Contracts Act sets out the different types of procedures through which a public contract is announced, valued or assessed and awarded.

Procurement procedures for a public tender in Spain

• Open procedure
• Restricted procedure
• Negotiated procedure
• Competitive negotiation procedure
• Innovation partnership procedure

On this occasion, we will focus on the negotiated procedure regulated in article 166 et seq. of the Public Sector Contracts Act.

Therefore, the negotiated procedure is one of the modalities for awarding public contracts. Considering article 166.1 of the Public Sector Contracts Act, (…) the contract shall be awarded to the bidder justifiably chosen by the contracting authority, after negotiating the conditions with one or several candidates.

The negotiated procedure is not commonly used (article 131 of the Public Sector Contracts Act). Its application is exceptional, extraordinary, and restrictive since it is an exception to the principles of competition and publicity, which regulate the contracting activity of the Public Administration.

Consequently, and according to articles 166.3 and 167 of the Public Sector Contracts Act, contracting bodies may only award works, supply, service, works concession and service concession contracts using the negotiated procedure when any of the following situations arise:

• When satisfying the contracting body’s needs it is essential that the service, as it is available on the market, is subject to prior design or adaptation work by the bidders.
• When the object of the contract includes a project or innovative solutions.
• When the contract cannot be awarded without prior negotiations due to specific circumstances linked to the nature, complexity or legal or financial configuration of the subject matter of the contract or inherent risks
• When the contracting authority cannot establish with sufficient precision the technical specifications by reference to a standard, European technical evaluation, common technical specification, or technical reference, as provided for in the Public Sector Contracts Act.
• When only irregular or unacceptable offers have been submitted in the open or restricted procedures previously followed.
• In the case of highly personalized social services contracts characterized by the person’s rootedness in the social care environment, provided the purpose of the contract is to provide continuity of care to people who were already beneficiaries of said service.

Thus, the Public Administration of Spain cannot use the negotiated procedure at its will; one of the above situations must occur.

Regarding the negotiating capacity of the bidders, and despite the title of the procedure negotiated or with negotiation, it is limited and not total.

In particular, it is necessary to refer to the individual administrative specifications of the public tender procedure in review. According to article 166.2 of the Public Sector Contracts Act, the specifications will determine the economic and technical aspects that, where appropriate, must be the object of negotiation with the companies. Also, (…) the procedure to be followed to negotiate will guarantee at all times the maximum transparency of the negotiation, its publicity and non-discrimination among participating bidders; (…).

In addition, the Public Sector Contracts Act requires that this information be sufficiently precise to enable economic operators to identify the nature and scope of the contract and decide whether to participate in the procedure.

Once again, this shows that the potential bidder must conduct an exhaustive study of the specifications published by the Public Administration before submitting its offer. The assessment of its capabilities, the Administration requirements and, where appropriate, the margin for negotiation will allow the company to decide, in an informed manner, if it wishes to participate in the public procurement.

If you require additional information on the negotiated procedure in public tenders in Spain,