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Ex-law amendments to public sector contracts (I): Supplementary supply

| News | Public and Regulatory Law

Carlos Morales analyzes in the Observatorio de Contratación Pública the new regulation of the contractual modifications of the Law 9/2017 on public sector contracts

The new regulation of contractual modifications brought about by Law 9/2017 of 8 November on Public Sector Contracts ("LCSP") has been widely analyzed.

Today we would like to look at some of the provisions on contractual modifications that escape from Articles 203 to 207 of the LCSP and which, although not presented as such, are configured as true cases of contract modification. In this first issue, we will focus on the direct awarding of contracts for complementary supplies without advertising.

Aim and purpose

Article 168(c) of the LCSP provides that additional deliveries made by the initial supplier of a supply which constitute a partial replacement of supplies or installations, or an extension of existing supplies or installations may be awarded directly through a negotiated procedure without advertising to the first supplier. The only restriction imposed by this provision is that a change of supplier would oblige the contracting authority to acquire material having different technical characteristics which would result in incompatibility or disproportionate technical difficulties in operation and maintenance. The Law provides that the duration of these contracts may not, as a general rule, exceed three years.

This provision originated in Council Directive 77/62/EEC of 21 December 1976, which provided for this same case and is currently covered by Article 32.3.b) of Directive 014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement.

The contracting authority may extend the scope and duration of the original contract without being bound by the limits of Articles 203 et seq. and without even being provided for in the contract documents. Thus, the body will accredit the concurrence of the case of fact in the report of necessity in order to, once the procedures provided for in the Law have been completed, formalize a new contract with the successful bidder of the first supply contract.

The legislator is contemplating the supply of a technically defined good that is difficult to replace in the market. This situation justifies direct award and avoids the contracting authority having to bear the cost of technological adaptation or changing suppliers prematurely.

The provision of Article 168(c) LCSP must be applied restrictively as in any case of negotiated procedure without advertising. The contracting authority must provide evidence that (i) the additional deliveries to those already insisted upon are intended to replace or extend them; and (ii) there is a cost of technological adaptation that makes a change of supplier inadvisable.

The justification for this procedure is found, as indicated by the Advocate General of the State in its Opinion 67/07, in "avoiding that the application of the principles of equality, publicity and competition lead to the production of disproportionate practical effects, such as incompatibilities or technical difficulties of use that could arise from the eventual change of supplier".

The Act limits the use of this power to three years. This provision should be understood as referring to the contract awarded through the negotiated procedure without publicity and not to the original contract. The systematic placement of the provision - the Law refers to the duration "of such contracts" - confirms that it is a time limit applicable to contracts awarded through the negotiated procedure without advertising as concluded in the Report of 22 July 2014 of the Advisory Board on Contracting in Catalonia. This time limit is not exhaustive and, as any general rule, it could be waived with reasons. In any case, the LCSP allows that, through the direct award of a new contract, the same contractor can supply a contracting authority for a period exceeding the legal limit of 5 years (29.4 LCSP).

Contrast with related contracts

This forecast contrasts with the requirements for tendering supply contracts according to needs (Additional Provision 33ª of the LCSP), as well as those required for contracts for complementary works and services.

The AP 33rd LCSP allows contracting bodies to tender contracts without having defined the number of units to be supplied, although it is subject to a maximum budget that can be extended. This supply depends on the evolution of consumption and, therefore, is not limited to a specific number of units, but to a budget that can be extended to guarantee the supply of the good even if it exceeds its initial estimate.

The paradox occurs because the 33rd AP subjects the extension of the budget to the limits of the modifications foreseen in the specifications (art. 204 LCSP). In this way, if the contracting body were to resort to the provision of article 168.c) LCSP, it could award a contract to guarantee the supply without being subject to a limit and without even having foreseen it in the specifications, while if it resorts to the AP 33ª it must foresee it in the specifications and the extension will also be limited to 20% of the initially established price (it is also notable that the unforeseen modifications are limited to 50%).

On the other hand, the legal provision is formulated in much broader terms than that contained in the same article for works and service contracts (Article 168.e LCSP). The Law allows the direct award by negotiated procedure without advertising of works and service contracts consisting of the repetition of similar contracts awarded to the same contractor. However, in these cases, the Law requires (i) that there be a base project which provides for the possibility of the subsequent award of the derived contracts with an indication of the number of possible additional works or services and their conditions; (ii) that this possibility be indicated in the tender announcement; (iii) that the amount of the derived works and services be taken into account when calculating the value of the initial contract; and (iv) that no more than three years have passed since the initial contract was given.


The persistence of this case in our legal system is noteworthy given the restrictive treatment given to the configuration of technical monopolies in the definition of services (art. 126.6 LCSP) and the limitations imposed on other similar contractual modalities, such as supply contracts based on needs (AP 33 LCSP) or the negotiated procedure for the award of complementary works and services.

The usefulness of article 168.c) LCSP is unquestionable as it allows contracting bodies to avoid the high costs of adaptation that are often involved in tendering for certain supplies. However, its scope contrasts with other contractual provisions which, for an apparently common purpose, significantly restrict the contracting authorities' ability to act.

You can read the article in the Observatorio de Contratación Pública.

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