La Ley de Contratos del Sector Público realiza una clasificación de los distintos contratos en función de los sujetos contratantes y el objeto del contrato, procediendo así con una distinción fundamental entre contratos administrativos y contratos privados. Tal distinción tiene relevancia de cara al régimen jurídico aplicable, y a la jurisdicción competente para conocer de los asuntos que suscite.

Administrative contracts

Administrative contracts must necessarily be concluded by entities, entities or organizations belonging to the category of Public Administration, in accordance with the aforementioned subjective scope.

However, the Contract Law also requires compliance with various objective requirements so that the Contract can be classified as administrative. Based on such objective features, administrative contracts are in turn classified as typical, mixed and special.

The Law expressly establishes a series of types of contracts entered into by Public Administrations, regulating the essential characteristics of each of them. In this way, typical contracts are:

They are considered typical because they conform to the types regulated in detail in the Law, and with few exceptions, they are the figures that have traditionally been adjusted to the concept of public contract par excellence.

The legal regime applicable to the preparation, award, effects and termination of typical administrative contracts will be that contemplated in the Public Sector Contracts Law, with Administrative Law acting as a substitute, and in the absence of both, Private Law.

On the other hand, the Contentious-Administrative Jurisdiction will be competent for the knowledge and resolution of matters related to the preparation, adjudication, compliance, effects and termination of administrative contracts.

Mixed administrative contracts are a subcategory of administrative contracts, characterized by containing benefits typical of several types of administrative contract. Since there is a diversity of rules applicable to its award, the provision that within the contract has a greater economic content will be regulated.

The incidence of mixed contracts in public sector contracting is very abundant. An example is the installation of an air conditioning system, which includes assembly (works contract), the device itself (supply contract) and subsequent technical assistance (service contract).

Special administrative contracts, also known as atypical contracts, are those that are linked to the specific line of business or traffic of the contracting Public Administration; or, those that directly and immediately satisfy a public purpose that is the responsibility of the contracting Administration.

Its legal regime will be determined by its specific regulation, and subsidiarily, the Public Sector Contracts Law. Additionally, the rest of the rules of administrative law will apply, and failing that, the rules of private law.

Once again, the Contentious-Administrative Jurisdiction will be competent for the knowledge and resolution of matters related to the preparation, adjudication, compliance, effects and termination of special or atypical administrative contracts.

Private contracts

Private contracts are those entered into by organizations, entities or entities of the public sector that are not considered Public Administration in accordance with the subjective scope described above. Likewise, those entered into by the Public Administration will also be considered private contracts when they belong to category 6 of Annex II of the Contract Law; to contracts for artistic creation or interpretation of category 26 of Annex II; subscriptions to magazines, newsletters, periodicals and databases; and finally, a very important residual category, referring to all those contracts that do not meet the objective requirements to be considered administrative contracts, which will therefore be considered private contracts.

The legal regime of private contracts is based on the doctrine of separable acts"). In this way, the preparation and award will be governed by the provisions of the Public Sector Contracts Law, additionally by administrative law, and failing that, by private law; while its effects and termination will be governed by private law.

Regarding the jurisdiction competent to hear the issues raised by private contracts, it should be noted that once again the doctrine of separable acts applies, with the Litigation-Administrative Jurisdiction being responsible for judging the preparation and awarding of private contracts. On the other hand, the effects, compliance and extinction of private contracts entered into by Public Administration will be judged by the Civil Jurisdiction.") It will also know the Civil Order of disputes that arise in relation to the preparation, adjudication, compliance, effects and termination of private contracts entered into by entities, entities or organizations of the public sector that are not considered Public Administration.

Minor contracts

Although they are not strictly speaking a type of contract, it is worth making a brief mention of the so-called minor contracts. They can be administrative or private contracts, and their file only requires the approval of the expense and the incorporation of the corresponding invoice. They cannot have a duration of more than one year, nor exceed certain amounts. Regarding their procedure, they will be awarded directly to any businessman who has the capacity to act and the required professional qualification.

The amounts that cannot be exceeded are:[4]​.

There is a possible exception referring to subscriptions (magazines, publications or databases).[5]​.

Contracts subject to harmonized regulation

Contracts subject to harmonized regulation, known as SARA contracts, are figures from European Union law, which include as an essential subjective requirement the contracting by an entity, entity or body that is considered a contracting authority, in accordance with the rules seen above regarding the subjective scope.

Regarding its objective requirements, the SARA contract must consist of:.

A series of contracts are also mentioned that will be excluded from the harmonized regulation, among which it is worth highlighting research and development contracts fully remunerated by the contracting body, provided that their results are not reserved for exclusive use by it in the exercise of its own activity, those in the defense sector or those for the production of programs intended for broadcasting (art. 13 law 30/2007).

In any case, the competent jurisdiction to hear disputes that arise regarding contracts subject to harmonized regulation will be the Contentious-Administrative Court.

Excluded contracts

The Public Sector Contracts Law lists a series of legal relationships that are not to be governed by said Law. In this way, it will not apply to the labor or statutory relationships of the public employee; in services managed directly by the Public Administration; in collaboration agreements"); in agreements and agreements with entities governed by International Law; in supply contracts relating to commercial, commercial, financial, industrial or similar activities of Public Law bodies dependent on an Administration; in arbitration and conciliation contracts; in those relating to the purchase and sale of securities, to the services provided by the Bank of Spain and to financial operations carried out to satisfy public budgetary needs; in the delivery of goods or provision of services by entities of the public sector; in management entrustments; and in authorizations and concessions on public domain assets.

The legal regime of said list of legal relationships will correspond to the special rules that regulate each of them. However, the principles contained in the Public Sector Contracts Law will fill any gaps that may occur in the special regulations.

El Título I del Libro I del Texto Refundido de la Ley de Contratos del Sector Público está dedicado a regular una serie de características comunes a todo contrato celebrado por el sector público. Se regula así la necesidad e idoneidad del contrato, así como sus plazos y prórrogas. Se establece el principio de libertad de pactos, así como el contenido mínimo contractual. La Ley también regula la perfección, forma, fiscalización y estadística de los contratos, así como su régimen de invalidez.

Necessity and suitability

The principle of necessity implies that public procurement can only respond to the satisfaction of a need related to the purposes of general interest pursued by the entity, entity or organization of the public sector in question. A logical consequence of this approach is the requirement of suitability of the contract to satisfy the need. Both issues must be precisely defined in the documentation prepared during the preparation phase of the contracting procedure.

Duration and extensions

The duration of the contracts will depend on the nature of their benefits and their financing. As a matter of principle, the need to submit to periodic competition the benefits that the public sector needs to satisfy is established, thus rejecting contracts of excessive duration.

Extensions may also be established, when expressly stipulated in the contract. It is required, however, that its characteristics remain unchanged during the extension period; as well as that said extensions had already been contemplated in the competition for the award of the contract.

Freedom of agreements

The principle of freedom of agreements implies that public sector contracts may include all those clauses, conditions and agreements that are considered appropriate. The limits to the freedom of agreements are configured by the prohibition of contradicting the public interest, the Legal System, or the so-called principles of good administration.

Another express limit to the freedom of agreements is related to the preparation of mixed contracts, in which benefits related to various contractual types are merged. In this case, the principle of functional unity is followed, so that the different benefits must maintain a complementary link between them that allows them to be considered as a single unit.

Minimum content of the contract

The Public Sector Contracts Law establishes that said contracts must have a minimum content, which can only be ignored when it is already contained in the specifications. Said content consists of:

Perfection

The contracts entered into by the contracting authorities are perfected with their formalization. Subsidized contracts that must be considered subject to harmonized regulation will be perfected in accordance with the legislation by which they are governed. The parties must notify their formalization to the body that granted the subsidy.

Shape

Unless it is an emergency procedure, public sector contracts cannot be concluded verbally. Likewise, the formalization of administrative contracts receives a specific regime (administrative document within ten days of notification of the final award), also respecting the particularities of the processing procedure for minor contracts.

Supervision

In order to allow the supervision of public sector contracting, a period of three months will be given in which an extract of the contracting file, as well as a certified copy of the document formalizing the contract, must be sent to the Court of Accounts "Tribunal de Auditors (Spain)") (or its regional equivalent). This is so, provided that the amount of the contract exceeds 600,000 euros, in the case of works, public works concessions, management of public services and collaboration contracts between the public sector and the private sector; of 450,000 euros, in the case of supplies, and 150,000 euros, in the case of services and special administrative contracts.

Likewise, notification to the Court of Accounts (or regional equivalent) of modifications, extensions, price variations, nullity and normal or abnormal termination of contracts is required.

Statistics

In order to compile the statistical data related to public procurement, a period of three months is also given for the contracting body to send the aforementioned information regarding the Court of Accounts, as well as that determined by regulation, to the State Administrative Contracting Advisory Board.

Disability

The invalidity of contracts entered into by Public Administrations and SARA contracts will occur if their preparatory acts or their award (provisional or definitive) are invalid according to the causes of administrative law and civil law mentioned below.

Regarding the causes of invalidity under administrative law, the Public Sector Contract Law distinguishes between voidability and nullity. The latter shares the causes of nullity established in article 47.1 of Law 39/2015 referring to administrative acts "Invalidity of the administrative act (Spain)" (injury of Fundamental Rights, manifestly incompetent authority, omission of procedure, impossible content, etc.). The Public Sector Contracts Law adds other causes of absolute nullity related to the successful bidder (lack of capacity to act; lack of economic and financial solvency), solvency technical and professional") -see below-, duly accredited; or the occurrence of any of the prohibitions to contract). Finally, the Law mentions as a cause of nullity that derived from the lack or insufficiency of credit to satisfy the price of the contract.

Continuing with the causes of invalidity of administrative law, we must mention the causes of voidability of the contract, which must include any violation of the rules of the Legal System, also including the misuse of power, consisting of the application of the rule for purposes other than those pursued by the rule itself.

Despite their different legal regime, the nullity or annulability of the preparatory or awarding acts may lead to the declaration of nullity of said acts. The effects of this declaration of nullity on the specific act extend over the entire contract, which will enter the liquidation phase. Therefore, the benefits received must be restored, and if this is not possible, their value will be reimbursed. Likewise, the guilty party may be obliged to compensate for damages. Regarding the nullity or annulability of acts other than the preparatory or adjudication acts, the declaration of nullity will only extend to the same null or voidable act, and its consequences.

Finally, the civil law causes of invalidity of the preparatory or adjudication acts (of Public Administration contracts and SARA contracts) will be subject to the requirements and deadlines for exercising the actions established in the civil order. However, the procedure to enforce them will be subject to the provisions [...] for voidable administrative acts and contracts.

Podrán celebrar contratos con el sector público las personas naturales o jurídicas con plena capacidad de obrar, que no incurran en prohibición alguna, y que cumplan los requisitos de solvencia o clasificación establecidos.

Capacity to act

To enter into contracts with the public sector, the person's full capacity to act is required, in accordance with the provisions of the Civil Procedure Law. In the case of legal entities, it is also required that the provision of the contract be within its purposes, its object and its statutory scope. On the other hand, in the case of a Community company"), it will be sufficient for it to meet the capacity requirements required by its national legislation.

Bans

The prohibition to contract is a figure that attributes to the fulfillment of a factual assumption, effects consisting of the impossibility of being part of the contract in question. The Consolidated Text of the Public Sector Contracts Law establishes two lists, where it lists the prohibitions for contracting with the public sector, and the prohibitions for contracting with the Public Administration.

You may not contract with public sector entities, entities or organizations when any of the following cases occur:

Without prejudice to the previous prohibitions (Public Administrations are part of the public sector), contracts with Public Administrations cannot be contracted when any of the following cases are incurred:

Solvency

The minimum requirements for economic and financial solvency"), technical and professional solvency") are previously established by the contracting body following the principle of proportionality with the object of the contract. As provided by Law, this requirement may be replaced by the classification requirement.

Classification is a figure that recognizes a certain solvency of the contractor, being independent of the contracting procedure.

Contracts may be divided into groups and subgroups, depending on their nature. In turn, they may be divided into categories, depending on their amount. In the same sense, the classification of companies will be made according to their solvency, and according to their different classification, they may apply for contracts of certain groups, subgroups and categories.

Community companies that are not Spanish, nor those that receive express authorization from the Council of Ministers, following a report from the State Administrative Contracting Advisory Board, will not require classification.

In any case, the classification will be registered ex officio in the Official Registry of Bidders and Classified Companies of the state (ROLECE)&action=edit&redlink=1 "Official Registry of Bidders and Classified Companies of the state (ROLECE) (not yet written)").

The Classification of contractors will only be required for the following types of contracts, entered into by Public Administrations (see art. 65.1 RDL 3/2011):

• Works, with an estimated value equal to or greater than 500,000 euros;.

Public sector entities that are not Public Administrations may require a certain classification of bidders.

Article 70.2 of the consolidated text of the Public Sector Contracts Law establishes that in order to maintain the classification, the maintenance of economic and financial solvency must be justified annually and, every three years, that of technical and professional solvency.[6]​.

El procedimiento descrito en el presente epígrafe responde exclusivamente a la contratación por ente, entidad u organismo con la categoría de Administración Pública. Para las entidades sujetas a la Ley distintas de las Administraciones Públicas, la Ley solo hace mención a los contratos SARA celebrados por poderes adjudicadores (entre otros), previendo la posibilidad de que contengan prescripciones técnicas; y estableciendo, en ciertas cuantías superiores la necesidad de que contengan Pliegos&action=edit&redlink=1 "Pliego contractual (España) (aún no redactado)") con las características básicas del contrato, el régimen de admisión de variantes, las modalidades de recepción de las ofertas, los criterios de adjudicación y las garantías..

Preparation

The procedure for the conclusion of contracts by Public Administrations begins with the processing of the contracting file. The initiation of said file corresponds to the contracting body.

The minimum content of the file includes the following aspects:

The Contract Law proposes three forms of processing the contracting procedure: Ordinary, urgent and emergency.

The ordinary processing adheres to the preparatory characteristics already mentioned, being the form of processing through which the Contract Law intends to conduct the majority of contracts entered into by the Public Administration. The regulation includes a specific procedure for minor contracts, already mentioned.

Once the file is completed, the contracting body issues a reasoned resolution agreeing to its approval and the opening of the award procedure.

The contracting body may add to the file a declaration of urgency, motivated by a need that cannot be postponed or whose award must be accelerated for reasons of public interest.

Urgent processing is a form derived from ordinary processing, which contains particularities such as preference in its dispatch, the reduction of most of its deadlines by half, and the execution of the contract cannot begin without its prior formalization (see art. 156.5 of RDL 3/2011).

Finally, if a period of 15 days passes from the time the final award is notified without execution having begun, the contract may be terminated. This is without prejudice to the fact that the delay is beyond the control of the parties, in which case, the contracting body may issue a reasoned resolution, avoiding the possible termination of the contract.

Emergency processing is an extraordinary way of entering into contracts, based on the need to act without delay in catastrophic situations or situations of serious risk to public safety.

It is a system that dispenses with all types of formalities and allows immediate contracting, proposing a system of subsequent control of such contracts. The contracting body, without processing any file or formality, and even lacking credit, goes directly to agreeing on the execution of the object of the contract. As a limit, the ordinary processing will be returned if execution does not begin within one month from when said agreement was issued.

Award

In ordinary and urgent procedures, the approval of the file implies the opening of the award procedure. There are five award procedures: open, restricted, negotiated, competitive dialogue and project competition. As a general rule, the open procedure or the restricted procedure will be used.

The open procedure is characterized by allowing any businessman to present a proposal and become a bidder for the contract, not allowing negotiation of the contractual terms.

The restricted procedure requires that, before announcing the tender, the contracting body establishes objective solvency criteria, on the basis of which it will select a minimum of 5 candidates who will be able to present proposals. As in the open procedure, negotiation between bidders and the contracting body of the contractual terms is not allowed.

The negotiated procedure is applicable in expressly assessed cases, where the contracting body carries out consultations with various contracts, negotiating their conditions with the bidders.

Given that this is a procedure in which there is a certain risk to the contracting principles (arbitrariness, inefficiency of public spending), not only is compliance with some of the factual assumptions provided for in the Law required, but it also requires requesting offers from a minimum of three qualified companies. Likewise, any discriminatory treatment or any treatment that could give advantages to any of the bidders is prohibited.

Competitive dialogue is a procedure designed for the conclusion of contracts of such complexity that the contracting body cannot clearly define the means required to satisfy its needs.

In such cases, the contracting body selects a group of candidates from among the applications received, to conduct a dialogue between them leading to discerning one or several possible options, and to establish the bases for said candidates to present their offers.

The project competition is a procedure dedicated to obtaining plans or projects, mainly in the fields of architecture, urban planning, engineering and data processing. After the tender, an independent Jury issues an opinion with the selected project or projects.

After that, the contracting body will award the contract. If the decision of the contracting body is separated from the opinion of the Jury, the corresponding motivation must be included.

In contracts subject to harmonized regulation, the report on reciprocity in relation to companies will be dispensed with

of signatory States of the Agreement on Public Procurement of the World Trade Organization (Uruguay Round).[7]​.

It is a special administrative court before which administrative appeals filed by individuals against the acts of public entities within the processes of awarding public sector contracts can be raised, optionally, in what is known as contractual appeal"), in the process of adaptation to community law.

At the level of the autonomous communities, they have two possibilities, either they created their own contracting court or, as an alternative, they could attribute the competence for the resolution of these resources to the Central Administrative Court of Contractual Resources, through the corresponding agreement with the State Administration.

Thus, in the case of those Communities in which they have been operating for some time, they have proven to be highly effective and useful. These have been:

Administrative Court of Contractual Resources of the Junta de Andalucía")[8]​.

Administrative Court of Public Contracts of Aragon") [9]​.

Administrative Court of Public Contracts of the Autonomous Community of the Canary Islands")[10]​.

Catalan Court of Public Sector Contracts[11]​.

Administrative Body of Contractual Resources of the Autonomous Community of Euskadi")[12]​.

Administrative Court of Contractual Resources of Extremadura")[13]​.

Administrative Court of Public Procurement of the Autonomous Community of Galicia").

Administrative Court of Public Procurement of the Community of Madrid")[14]​.

Administrative Court of Public Contracts of Navarra")[15]​.

The Administrative Court of Contractual Resources of Castilla y León (TARCCYL) is created by Law of the Cortes of Castilla y León 1/2012, of February 28, as the competent administrative body for the knowledge and resolution of special appeals in matters of contracting and issues of contractual nullity in accordance with the Public Sector Contract regulations, in the field of contracting procedures of the contracting powers included in the subjective scope of Law 3/2001, of July 3, of the Government and the Administration of the Community of Castilla y León, and the Public Bodies and other entities dependent or linked to it, the Universities, as well as the Local Entities of Castilla y León and their dependent entities.

The Court, established on March 27, 2012, has its headquarters at Plaza de la Catedral, 5, 49001 Zamora, and the Consultative Council of Castilla y León must provide the Administrative Court of Contractual Resources of Castilla y León, for the exercise of the functions entrusted to it, with the necessary material and personal means from its budget.

As of this date, the Court is made up of a President, who will be the President of the Consultative Council of Castilla y León, Mario Amilivia González, and the other two Members, who will be the other Elective Councilors of the Consultative Council of Castilla y León, José Ignacio Sobrini Lacruz and Francisco Ramos Antón, acting as secretary of the body, who will not have the capacity of member thereof, an official of the Consultative Council of Castilla y León at the proposal of its President, Luis Fco. Gracia Romero.

La Ley de Contratos del Sector Público realiza una clasificación de los distintos contratos en función de los sujetos contratantes y el objeto del contrato, procediendo así con una distinción fundamental entre contratos administrativos y contratos privados. Tal distinción tiene relevancia de cara al régimen jurídico aplicable, y a la jurisdicción competente para conocer de los asuntos que suscite.

Administrative contracts

Administrative contracts must necessarily be concluded by entities, entities or organizations belonging to the category of Public Administration, in accordance with the aforementioned subjective scope.

However, the Contract Law also requires compliance with various objective requirements so that the Contract can be classified as administrative. Based on such objective features, administrative contracts are in turn classified as typical, mixed and special.

The Law expressly establishes a series of types of contracts entered into by Public Administrations, regulating the essential characteristics of each of them. In this way, typical contracts are:

They are considered typical because they conform to the types regulated in detail in the Law, and with few exceptions, they are the figures that have traditionally been adjusted to the concept of public contract par excellence.

The legal regime applicable to the preparation, award, effects and termination of typical administrative contracts will be that contemplated in the Public Sector Contracts Law, with Administrative Law acting as a substitute, and in the absence of both, Private Law.

On the other hand, the Contentious-Administrative Jurisdiction will be competent for the knowledge and resolution of matters related to the preparation, adjudication, compliance, effects and termination of administrative contracts.

Mixed administrative contracts are a subcategory of administrative contracts, characterized by containing benefits typical of several types of administrative contract. Since there is a diversity of rules applicable to its award, the provision that within the contract has a greater economic content will be regulated.

The incidence of mixed contracts in public sector contracting is very abundant. An example is the installation of an air conditioning system, which includes assembly (works contract), the device itself (supply contract) and subsequent technical assistance (service contract).

Special administrative contracts, also known as atypical contracts, are those that are linked to the specific line of business or traffic of the contracting Public Administration; or, those that directly and immediately satisfy a public purpose that is the responsibility of the contracting Administration.

Its legal regime will be determined by its specific regulation, and subsidiarily, the Public Sector Contracts Law. Additionally, the rest of the rules of administrative law will apply, and failing that, the rules of private law.

Once again, the Contentious-Administrative Jurisdiction will be competent for the knowledge and resolution of matters related to the preparation, adjudication, compliance, effects and termination of special or atypical administrative contracts.

Private contracts

Private contracts are those entered into by organizations, entities or entities of the public sector that are not considered Public Administration in accordance with the subjective scope described above. Likewise, those entered into by the Public Administration will also be considered private contracts when they belong to category 6 of Annex II of the Contract Law; to contracts for artistic creation or interpretation of category 26 of Annex II; subscriptions to magazines, newsletters, periodicals and databases; and finally, a very important residual category, referring to all those contracts that do not meet the objective requirements to be considered administrative contracts, which will therefore be considered private contracts.

The legal regime of private contracts is based on the doctrine of separable acts"). In this way, the preparation and award will be governed by the provisions of the Public Sector Contracts Law, additionally by administrative law, and failing that, by private law; while its effects and termination will be governed by private law.

Regarding the jurisdiction competent to hear the issues raised by private contracts, it should be noted that once again the doctrine of separable acts applies, with the Litigation-Administrative Jurisdiction being responsible for judging the preparation and awarding of private contracts. On the other hand, the effects, compliance and extinction of private contracts entered into by Public Administration will be judged by the Civil Jurisdiction.") It will also know the Civil Order of disputes that arise in relation to the preparation, adjudication, compliance, effects and termination of private contracts entered into by entities, entities or organizations of the public sector that are not considered Public Administration.

Minor contracts

Although they are not strictly speaking a type of contract, it is worth making a brief mention of the so-called minor contracts. They can be administrative or private contracts, and their file only requires the approval of the expense and the incorporation of the corresponding invoice. They cannot have a duration of more than one year, nor exceed certain amounts. Regarding their procedure, they will be awarded directly to any businessman who has the capacity to act and the required professional qualification.

The amounts that cannot be exceeded are:[4]​.

There is a possible exception referring to subscriptions (magazines, publications or databases).[5]​.

Contracts subject to harmonized regulation

Contracts subject to harmonized regulation, known as SARA contracts, are figures from European Union law, which include as an essential subjective requirement the contracting by an entity, entity or body that is considered a contracting authority, in accordance with the rules seen above regarding the subjective scope.

Regarding its objective requirements, the SARA contract must consist of:.

A series of contracts are also mentioned that will be excluded from the harmonized regulation, among which it is worth highlighting research and development contracts fully remunerated by the contracting body, provided that their results are not reserved for exclusive use by it in the exercise of its own activity, those in the defense sector or those for the production of programs intended for broadcasting (art. 13 law 30/2007).

In any case, the competent jurisdiction to hear disputes that arise regarding contracts subject to harmonized regulation will be the Contentious-Administrative Court.

Excluded contracts

The Public Sector Contracts Law lists a series of legal relationships that are not to be governed by said Law. In this way, it will not apply to the labor or statutory relationships of the public employee; in services managed directly by the Public Administration; in collaboration agreements"); in agreements and agreements with entities governed by International Law; in supply contracts relating to commercial, commercial, financial, industrial or similar activities of Public Law bodies dependent on an Administration; in arbitration and conciliation contracts; in those relating to the purchase and sale of securities, to the services provided by the Bank of Spain and to financial operations carried out to satisfy public budgetary needs; in the delivery of goods or provision of services by entities of the public sector; in management entrustments; and in authorizations and concessions on public domain assets.

The legal regime of said list of legal relationships will correspond to the special rules that regulate each of them. However, the principles contained in the Public Sector Contracts Law will fill any gaps that may occur in the special regulations.

El Título I del Libro I del Texto Refundido de la Ley de Contratos del Sector Público está dedicado a regular una serie de características comunes a todo contrato celebrado por el sector público. Se regula así la necesidad e idoneidad del contrato, así como sus plazos y prórrogas. Se establece el principio de libertad de pactos, así como el contenido mínimo contractual. La Ley también regula la perfección, forma, fiscalización y estadística de los contratos, así como su régimen de invalidez.

Necessity and suitability

The principle of necessity implies that public procurement can only respond to the satisfaction of a need related to the purposes of general interest pursued by the entity, entity or organization of the public sector in question. A logical consequence of this approach is the requirement of suitability of the contract to satisfy the need. Both issues must be precisely defined in the documentation prepared during the preparation phase of the contracting procedure.

Duration and extensions

The duration of the contracts will depend on the nature of their benefits and their financing. As a matter of principle, the need to submit to periodic competition the benefits that the public sector needs to satisfy is established, thus rejecting contracts of excessive duration.

Extensions may also be established, when expressly stipulated in the contract. It is required, however, that its characteristics remain unchanged during the extension period; as well as that said extensions had already been contemplated in the competition for the award of the contract.

Freedom of agreements

The principle of freedom of agreements implies that public sector contracts may include all those clauses, conditions and agreements that are considered appropriate. The limits to the freedom of agreements are configured by the prohibition of contradicting the public interest, the Legal System, or the so-called principles of good administration.

Another express limit to the freedom of agreements is related to the preparation of mixed contracts, in which benefits related to various contractual types are merged. In this case, the principle of functional unity is followed, so that the different benefits must maintain a complementary link between them that allows them to be considered as a single unit.

Minimum content of the contract

The Public Sector Contracts Law establishes that said contracts must have a minimum content, which can only be ignored when it is already contained in the specifications. Said content consists of:

Perfection

The contracts entered into by the contracting authorities are perfected with their formalization. Subsidized contracts that must be considered subject to harmonized regulation will be perfected in accordance with the legislation by which they are governed. The parties must notify their formalization to the body that granted the subsidy.

Shape

Unless it is an emergency procedure, public sector contracts cannot be concluded verbally. Likewise, the formalization of administrative contracts receives a specific regime (administrative document within ten days of notification of the final award), also respecting the particularities of the processing procedure for minor contracts.

Supervision

In order to allow the supervision of public sector contracting, a period of three months will be given in which an extract of the contracting file, as well as a certified copy of the document formalizing the contract, must be sent to the Court of Accounts "Tribunal de Auditors (Spain)") (or its regional equivalent). This is so, provided that the amount of the contract exceeds 600,000 euros, in the case of works, public works concessions, management of public services and collaboration contracts between the public sector and the private sector; of 450,000 euros, in the case of supplies, and 150,000 euros, in the case of services and special administrative contracts.

Likewise, notification to the Court of Accounts (or regional equivalent) of modifications, extensions, price variations, nullity and normal or abnormal termination of contracts is required.

Statistics

In order to compile the statistical data related to public procurement, a period of three months is also given for the contracting body to send the aforementioned information regarding the Court of Accounts, as well as that determined by regulation, to the State Administrative Contracting Advisory Board.

Disability

The invalidity of contracts entered into by Public Administrations and SARA contracts will occur if their preparatory acts or their award (provisional or definitive) are invalid according to the causes of administrative law and civil law mentioned below.

Regarding the causes of invalidity under administrative law, the Public Sector Contract Law distinguishes between voidability and nullity. The latter shares the causes of nullity established in article 47.1 of Law 39/2015 referring to administrative acts "Invalidity of the administrative act (Spain)" (injury of Fundamental Rights, manifestly incompetent authority, omission of procedure, impossible content, etc.). The Public Sector Contracts Law adds other causes of absolute nullity related to the successful bidder (lack of capacity to act; lack of economic and financial solvency), solvency technical and professional") -see below-, duly accredited; or the occurrence of any of the prohibitions to contract). Finally, the Law mentions as a cause of nullity that derived from the lack or insufficiency of credit to satisfy the price of the contract.

Continuing with the causes of invalidity of administrative law, we must mention the causes of voidability of the contract, which must include any violation of the rules of the Legal System, also including the misuse of power, consisting of the application of the rule for purposes other than those pursued by the rule itself.

Despite their different legal regime, the nullity or annulability of the preparatory or awarding acts may lead to the declaration of nullity of said acts. The effects of this declaration of nullity on the specific act extend over the entire contract, which will enter the liquidation phase. Therefore, the benefits received must be restored, and if this is not possible, their value will be reimbursed. Likewise, the guilty party may be obliged to compensate for damages. Regarding the nullity or annulability of acts other than the preparatory or adjudication acts, the declaration of nullity will only extend to the same null or voidable act, and its consequences.

Finally, the civil law causes of invalidity of the preparatory or adjudication acts (of Public Administration contracts and SARA contracts) will be subject to the requirements and deadlines for exercising the actions established in the civil order. However, the procedure to enforce them will be subject to the provisions [...] for voidable administrative acts and contracts.

Podrán celebrar contratos con el sector público las personas naturales o jurídicas con plena capacidad de obrar, que no incurran en prohibición alguna, y que cumplan los requisitos de solvencia o clasificación establecidos.

Capacity to act

To enter into contracts with the public sector, the person's full capacity to act is required, in accordance with the provisions of the Civil Procedure Law. In the case of legal entities, it is also required that the provision of the contract be within its purposes, its object and its statutory scope. On the other hand, in the case of a Community company"), it will be sufficient for it to meet the capacity requirements required by its national legislation.

Bans

The prohibition to contract is a figure that attributes to the fulfillment of a factual assumption, effects consisting of the impossibility of being part of the contract in question. The Consolidated Text of the Public Sector Contracts Law establishes two lists, where it lists the prohibitions for contracting with the public sector, and the prohibitions for contracting with the Public Administration.

You may not contract with public sector entities, entities or organizations when any of the following cases occur:

Without prejudice to the previous prohibitions (Public Administrations are part of the public sector), contracts with Public Administrations cannot be contracted when any of the following cases are incurred:

Solvency

The minimum requirements for economic and financial solvency"), technical and professional solvency") are previously established by the contracting body following the principle of proportionality with the object of the contract. As provided by Law, this requirement may be replaced by the classification requirement.

Classification is a figure that recognizes a certain solvency of the contractor, being independent of the contracting procedure.

Contracts may be divided into groups and subgroups, depending on their nature. In turn, they may be divided into categories, depending on their amount. In the same sense, the classification of companies will be made according to their solvency, and according to their different classification, they may apply for contracts of certain groups, subgroups and categories.

Community companies that are not Spanish, nor those that receive express authorization from the Council of Ministers, following a report from the State Administrative Contracting Advisory Board, will not require classification.

In any case, the classification will be registered ex officio in the Official Registry of Bidders and Classified Companies of the state (ROLECE)&action=edit&redlink=1 "Official Registry of Bidders and Classified Companies of the state (ROLECE) (not yet written)").

The Classification of contractors will only be required for the following types of contracts, entered into by Public Administrations (see art. 65.1 RDL 3/2011):

• Works, with an estimated value equal to or greater than 500,000 euros;.

Public sector entities that are not Public Administrations may require a certain classification of bidders.

Article 70.2 of the consolidated text of the Public Sector Contracts Law establishes that in order to maintain the classification, the maintenance of economic and financial solvency must be justified annually and, every three years, that of technical and professional solvency.[6]​.

El procedimiento descrito en el presente epígrafe responde exclusivamente a la contratación por ente, entidad u organismo con la categoría de Administración Pública. Para las entidades sujetas a la Ley distintas de las Administraciones Públicas, la Ley solo hace mención a los contratos SARA celebrados por poderes adjudicadores (entre otros), previendo la posibilidad de que contengan prescripciones técnicas; y estableciendo, en ciertas cuantías superiores la necesidad de que contengan Pliegos&action=edit&redlink=1 "Pliego contractual (España) (aún no redactado)") con las características básicas del contrato, el régimen de admisión de variantes, las modalidades de recepción de las ofertas, los criterios de adjudicación y las garantías..

Preparation

The procedure for the conclusion of contracts by Public Administrations begins with the processing of the contracting file. The initiation of said file corresponds to the contracting body.

The minimum content of the file includes the following aspects:

The Contract Law proposes three forms of processing the contracting procedure: Ordinary, urgent and emergency.

The ordinary processing adheres to the preparatory characteristics already mentioned, being the form of processing through which the Contract Law intends to conduct the majority of contracts entered into by the Public Administration. The regulation includes a specific procedure for minor contracts, already mentioned.

Once the file is completed, the contracting body issues a reasoned resolution agreeing to its approval and the opening of the award procedure.

The contracting body may add to the file a declaration of urgency, motivated by a need that cannot be postponed or whose award must be accelerated for reasons of public interest.

Urgent processing is a form derived from ordinary processing, which contains particularities such as preference in its dispatch, the reduction of most of its deadlines by half, and the execution of the contract cannot begin without its prior formalization (see art. 156.5 of RDL 3/2011).

Finally, if a period of 15 days passes from the time the final award is notified without execution having begun, the contract may be terminated. This is without prejudice to the fact that the delay is beyond the control of the parties, in which case, the contracting body may issue a reasoned resolution, avoiding the possible termination of the contract.

Emergency processing is an extraordinary way of entering into contracts, based on the need to act without delay in catastrophic situations or situations of serious risk to public safety.

It is a system that dispenses with all types of formalities and allows immediate contracting, proposing a system of subsequent control of such contracts. The contracting body, without processing any file or formality, and even lacking credit, goes directly to agreeing on the execution of the object of the contract. As a limit, the ordinary processing will be returned if execution does not begin within one month from when said agreement was issued.

Award

In ordinary and urgent procedures, the approval of the file implies the opening of the award procedure. There are five award procedures: open, restricted, negotiated, competitive dialogue and project competition. As a general rule, the open procedure or the restricted procedure will be used.

The open procedure is characterized by allowing any businessman to present a proposal and become a bidder for the contract, not allowing negotiation of the contractual terms.

The restricted procedure requires that, before announcing the tender, the contracting body establishes objective solvency criteria, on the basis of which it will select a minimum of 5 candidates who will be able to present proposals. As in the open procedure, negotiation between bidders and the contracting body of the contractual terms is not allowed.

The negotiated procedure is applicable in expressly assessed cases, where the contracting body carries out consultations with various contracts, negotiating their conditions with the bidders.

Given that this is a procedure in which there is a certain risk to the contracting principles (arbitrariness, inefficiency of public spending), not only is compliance with some of the factual assumptions provided for in the Law required, but it also requires requesting offers from a minimum of three qualified companies. Likewise, any discriminatory treatment or any treatment that could give advantages to any of the bidders is prohibited.

Competitive dialogue is a procedure designed for the conclusion of contracts of such complexity that the contracting body cannot clearly define the means required to satisfy its needs.

In such cases, the contracting body selects a group of candidates from among the applications received, to conduct a dialogue between them leading to discerning one or several possible options, and to establish the bases for said candidates to present their offers.

The project competition is a procedure dedicated to obtaining plans or projects, mainly in the fields of architecture, urban planning, engineering and data processing. After the tender, an independent Jury issues an opinion with the selected project or projects.

After that, the contracting body will award the contract. If the decision of the contracting body is separated from the opinion of the Jury, the corresponding motivation must be included.

In contracts subject to harmonized regulation, the report on reciprocity in relation to companies will be dispensed with

of signatory States of the Agreement on Public Procurement of the World Trade Organization (Uruguay Round).[7]​.

It is a special administrative court before which administrative appeals filed by individuals against the acts of public entities within the processes of awarding public sector contracts can be raised, optionally, in what is known as contractual appeal"), in the process of adaptation to community law.

At the level of the autonomous communities, they have two possibilities, either they created their own contracting court or, as an alternative, they could attribute the competence for the resolution of these resources to the Central Administrative Court of Contractual Resources, through the corresponding agreement with the State Administration.

Thus, in the case of those Communities in which they have been operating for some time, they have proven to be highly effective and useful. These have been:

Administrative Court of Contractual Resources of the Junta de Andalucía")[8]​.

Administrative Court of Public Contracts of Aragon") [9]​.

Administrative Court of Public Contracts of the Autonomous Community of the Canary Islands")[10]​.

Catalan Court of Public Sector Contracts[11]​.

Administrative Body of Contractual Resources of the Autonomous Community of Euskadi")[12]​.

Administrative Court of Contractual Resources of Extremadura")[13]​.

Administrative Court of Public Procurement of the Autonomous Community of Galicia").

Administrative Court of Public Procurement of the Community of Madrid")[14]​.

Administrative Court of Public Contracts of Navarra")[15]​.

The Administrative Court of Contractual Resources of Castilla y León (TARCCYL) is created by Law of the Cortes of Castilla y León 1/2012, of February 28, as the competent administrative body for the knowledge and resolution of special appeals in matters of contracting and issues of contractual nullity in accordance with the Public Sector Contract regulations, in the field of contracting procedures of the contracting powers included in the subjective scope of Law 3/2001, of July 3, of the Government and the Administration of the Community of Castilla y León, and the Public Bodies and other entities dependent or linked to it, the Universities, as well as the Local Entities of Castilla y León and their dependent entities.

The Court, established on March 27, 2012, has its headquarters at Plaza de la Catedral, 5, 49001 Zamora, and the Consultative Council of Castilla y León must provide the Administrative Court of Contractual Resources of Castilla y León, for the exercise of the functions entrusted to it, with the necessary material and personal means from its budget.

As of this date, the Court is made up of a President, who will be the President of the Consultative Council of Castilla y León, Mario Amilivia González, and the other two Members, who will be the other Elective Councilors of the Consultative Council of Castilla y León, José Ignacio Sobrini Lacruz and Francisco Ramos Antón, acting as secretary of the body, who will not have the capacity of member thereof, an official of the Consultative Council of Castilla y León at the proposal of its President, Luis Fco. Gracia Romero.