The legislative framework for public contracts and public procurement consists of two main laws: Royal Legislative Decree 3/2011 of November 14 which provides the revised text of the Public Sector contracts related norms; and Law 31/2007, of October 30, on contracting procedures in the special sectors (water, energy, transports and postal services). Royal Legislative Decree 3/2011 refers to the contracts and procurement processes to be used by public administration related bodies, and Law 31/2007 refers to those to be used by companies and entities owned by public administrations and private companies holding special or exclusive rights granted by a public administration body. These are the laws implementing Directives 2004/17/CE and 2004/18/CE, respectively.
Directives mentioned above have been repealed by Directives 2014/23/CE, 2014/24/CE and 2014/25/CE, that should have been implemented by Member States no later than April 18, 2016. However, none of them has been transposed yet in Spain. Therefore, and in accordance with the judgments of the European Union Court of Justice, it should be understood that some provisions of the Directives produce direct effect and are compulsory for contracting bodies (e.g. Articles 27 to 29 and 32 of the EU Directive 2014/24).
The European Union principles and rules have been an obligatory reference for the Spanish legislator. The most important and influential European rules are: the Treaty of the European Union with its principles of transparency and free movement of persons, goods, services and capital; Directive 2014/24/CE, of February 26, on the coordination of procedures for the award of public contracts; Directive 2013/25/CE, of February 26, on procurement by entities operating in the water, energy, transport and postal services sectors; Directive 2014/23/CE, of February 26, on the Award of Concession Contracts; and Services Directive 2006/123/EC, of December 12.
The main principles underlying the rules on public procurement are free access to tenders, publicity and transparency of the procedures, equal treatment and non-discrimination of candidates participating in the procurement procedure, and efficient use of public funds in case the procedure is launched by a public administration or related body or company. The latter is ensured through prior definition of the needs of the public service to be provided and through guaranteeing free competition, as well as the selection of the best economic offer. Procurement procedures cannot introduce unjustified restrictions to these principles either in the execution of the procedures or in the performance of the contract, once this has been awarded. Finally, these procedures must also prevent unlawful collusion between bidders.
Yes, the aerospace and defense procurement has its own regime, and it is regulated by Law 24/2011, of August 1, on public sector defense and security contracts, entered into force in November 2011. This piece of legislation implements Directive 2009/81/CE, of July 13, on coordination of the awarding procedures of certain works, supplies and services contracts related to defence and security, and provides a specific set of rules for their related procurement processes. In addition to Law 24/2011, it is important to note Instruction 5/2010 issued by the Ministry of Defence, which approves the Plan for the Organization of the Ministry of Defence's Contracting Related Procedures as well as Royal Decree 1011/2013, of December 20, which also relates to the internal organization and distribution of functions within the Ministry of Defense in connection with contracting, technical agreements and the like.
Following Directive 2009/81/CE, of July 13, Law 24/2011, of August 1, establishes a different treatment for defense contracts. Law 24/2011 reinforces the security aspects of the information which is transferred to tenderers, the guarantee of continual supply, and the need to establish certain norms which allow for a more flexible contracting procedure. Royal Legislative Decree 3/2011 is supplementary to Law 24/2011. Essentially, the different regime establishes a procedure for the selection of tenderers with the purpose of limiting their number, so that the negotiating procedure may be held with a limited number of qualified tenderers which meet all the technical and solvency requirements necessary for the proper execution of the contract.
Law 24/2011 also seeks to strengthen small and medium-size companies' participation in public contracts and requires transparency in the selection of subcontractors by establishing minimum publicity requirements for the subcontracting process, so that subcontracts follow objective criteria.