Contracts are awarded to economic operators that are suitable with regard to the subject-matter of the contract. A bidder or an applicant respectively is suitable if he possesses technical knowledge, efficiency and reliability. Economic operators possess the required technical knowledge if they have the knowledge and experience to accomplish the task subject of the contract. Specific experience in similar tasks will be considered.

An economic operator qualifies as reliable if he guarantees contract performance in due form and, in particular, in line with applicable provisions of law (tax, social, criminal, etc.). Additionally, he has to provide the ability to carry out the contract within the time limits set by the contracting authorities and follow the instructions given by them.

Finally, some entrepreneurs can be required to classification of their activity (works/services).

Prequalification is specifically contemplated for restricted procedures, where tenders or auctions are open exclusively to a certain number of operators pre-selected by the contracting authority in accordance to their solvency.

There are some prohibitions on contracting that can exclude operators from participating in tenders (e.g. to have been convicted of an offence that leads to a mandatory exclusion from the procurement procedure; to be declared insolvent or solicit the contest voluntary creditors, etc). However, these prohibitions will not last forever: some of them will last as long as the circumstance exists, and others will have a determined duration subjected either to the length of the penal sentence, or to periods of 3 or 5 years, depending on the case.

In order to prevent conflicts of interest, a company that was involved in the set-up of an open procurement procedure (i.e. drafting of or advising on the specifications) can be excluded from said procedure. However, new Directive 2014/24/CE contemplates the possibility that contracting bodies request the assessment of market participants, as long as this advice does not have the effect of distorting competition and does not result in a violation of the principles of non-discrimination and transparency. In that case, the contracting authority shall take appropriate measures to ensure that competition is not distorted by the participation of that candidate or tenderer.

Yes, operators may submit joint bids, and when such joint bids are submitted, they are required to commit to the creation of a temporary joint venture specific for the contract to be awarded and become bound by joint and several liabilities.

With regards to limitations, please see answer 4.C.

There is a lack of a proper regulation for bidder consortiums in public sector contracting Laws, therefore doctrine and case-law must be applied case by case.

With regards to the possibility to change member of a bidder consortium, it has been commonly accepted that if before the awarding, a member of the consortium expressively waives or is declared insolvent (which constitutes a prohibition for contracting), the contract can be awarded to the remaining members of the consortium as long as they fulfill all solvency and classification requirements.

On the other side, there are not pronouncements about the possibility of incorporating additional members to the consortium that has already submitted an offer. However, it could be understood that this practice is illegal since it would imply a subjective novation contrary to the principle of equal treatment.

Related bidders are those which belong to the same group or holding or are otherwise related by corporate means. It is generally assumed that the participation of related bidders in the same procurement procedure with competitive bids is an anti-trust law violation because it is assumed that information relevant for drafting the bids is exchanged between entities of the same group or holding. However, it is a very controversial issue.

The law expressly prohibits the participation of related bidders in public works concession contracts.

Yes. EU companies' participation is subjected to fulfilment of the requirements established in their own legislation. On the other side, non Community companies may be authorized to participate as long as they submit a report (from the respective Spanish Permanent Diplomatic Mission) concluding that under their national procurement law, Spanish companies are also allowed to participate in their procurement procedures. However, in harmonized contracts, non Community companies that come from a State signatory of the Government Procurement Agreement of the World Trade Organization will be exempted from proving this report.

Finally, in works contracts, non Community companies are required to establish a branch in Spain with legal representation and registered in the Mercantile Registry.