Among the main changes are the raising of the thresholds for the use of prior consultation and direct award procedures, the reorganization of the rules governing the exclusion of bids—consolidating the main grounds for exclusion in Article 70—the introduction of a fully voluntary arbitration system, and the reinstatement of conciliation committees. With regard to contractual invalidity, the criterion for avoiding the nullifying effect becomes more restrictive, requiring “compelling reasons of general interest,” in line with the case law of the Court of Justice of the European Union.
For construction contracts, the threshold for direct award increases fivefold, rising from the current 30,000 euros to 150,000 euros, while the threshold for prior consultation rises from 150,000 to one million. For the procurement of goods and services, the threshold for direct awards rises from the current 20,000 euros to 75,000 euros, while for prior consultation, the threshold increases to 130,000 euros, up from the current 75,000 euros.
In public works contracts, one of the most significant changes is the elimination of the mandatory review of construction drawings. Another significant change is the elimination of the requirement to set a base price. Until now, the contracting authority set a maximum amount for the performance of the contract. With the revision, this provision—in the invitation to bid or the procedure guidelines—is now optional. With regard to subcontracting, the public contracting authority must respond to the subcontractor’s proposal within 30 days of its submission, provided that the proposal is properly documented. If the public contracting authority does not communicate with the subcontractor within that period, the proposal is deemed to have been accepted.
This legislation enshrines the digital integration of public procurement, recognizing the possibility of using digital systems—including artificial intelligence—and identifying the principles that should guide the use of these systems, namely guarantees of interoperability and data protection. In addition, public procurement is simplified through the reduction of red tape and the resulting cost savings for economic operators and contracting authorities, by eliminating declaratory documentation that serves no practical purpose and implementing the “once-only” principle, which exempts the submission of information already in the possession of the public administration, particularly with regard to qualification documents.
A new possible ground for not awarding a contract due to the absence of “satisfactory bids” is also provided for, and a system is introduced to make the public bidding procedure more flexible, granting procedural discretion to contracting authorities with a view to simplifying competitive procedures whose estimated value is below the European thresholds.
Planned public procurement is promoted by establishing a special obligation for contracting authorities to clearly determine, prior to the start of the procedure, the nature and scope of the needs they intend to meet.
As a measure to promote private initiative and innovation, the submission of unsolicited proposals for project implementation is now permitted; this is a preparatory tool for procurement procedures that allows interested parties to voluntarily demonstrate their interest in contracting, and through which contracting entities may initiate a contract award procedure, thereby fostering innovations developed by economic operators and channeling private initiatives into regular competitive procedures.
The amendment to the Public Contracts Code takes effect on October 1. The changes apply to public procurement procedures initiated after the date of their entry into force and to the performance of contracts entered into as a result of procurement procedures initiated after that date.
Image credit: © Ivan Bandura | Unsplash
Translated with DeepL.com (free version)
