Types of contracts
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. Depending 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.