Limiting Contract Award modifications in Spain

We're pleased to welcome back guest writer Toni Saraiva. Toni  works in England (but travels a lot) for EISC, who help small firms in particular understand the wonders of EU procurement and how to bid for contracts.

It sounds almost unbelievable, but until recently an interesting procurement practice was going on in Spain. After awarding a contract, the Spanish public sector organisation was modifying the contract including additional works, or changing some of the fundamental guarantees of the contract.

The Spanish Law 30/2007 on public sector contracts gave the procurers an almost unlimited power to modify essential terms of public contracts after award, in a manner which was not in line with the principles of equal treatment between bidders, non-discrimination and transparency set out in EU public procurement rules.

Can you imagine saying that you are procuring “xyz”, companies bidding for “xyz” and then after the award you turn to the company and ask for “w” to be provided as well. It would probably be done at an extra cost but it does cut out the chance for the other providers to be considered for the delivery of “w” as well. If you were to be creative “w” could be much more interesting for the company and the public sector than the “xyz” part.

All that is finished however (well, at least legally) through a law published earlier this year.

But this is interesting given the current consultation on EU regulations - see Peter Smith's comments about the UK proposals, which include extending the ability of buyers to negotiate with suppliers...

Until next time…

Voices (2)

  1. Craig:

    Although, of course, if I had read correctly, this was what was being corrected…..damned haste.

  2. Craig:

    Doesn’t fly in the face somewhat of Pressetext v Austria?

    http://www.supplymanagement.com/law/court-reports/2009/pressetext-v-austria/

    An amendment may be regarded as material when (a) it introduces conditions which, had they been part of the initial award procedure, would have allowed for the admission of tenderers other than those initially admitted, or for the acceptance of a tender other than the one initially accepted; (b) it extends the contract’s scope to encompass services not initially covered. Or (c) it changes the economic balance in favour of the contractor in a manner not provided for in the initial contract.

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