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The new Public Procurement Law requires rigorous enforcement by Administrations to maximize resources

| Events | Public and Regulatory Law

Conference on public procurement organised by the FVMP

The New Public Contracts Law allows to broaden the number of bidders, reduces the amount of the minor contract, avoids the division into lots and enhances innovation and sustainability of the public sector, so it requires a rigorous application by Administrations to maximize the efficiency of public resources.

During the conference on the new law on public sector contracts organised by the Valencian Federation of Municipalities and Provinces, which brought together more than 350 attendees in the City of Justice of Valencia, José Vicente Morote, partner responsible for the area of Public and Regulatory Law at Andersen Tax & Legal, Silvia del Saz, of counsel of the firm and professor of Administrative Law, Eduardo García Osca, senior associate, and Raquel Enciso, associate.

The conference highlighted the new situation in which City Councils are left in terms of recruitment, with special emphasis on the effects of the implementation of the new legislative text in municipal corporations. For the purposes of its application to local entities, the law presents important updates, both in its general application in the public sector, and in the new regime of minor contracts, as well as in others specifically foreseen for the local sphere and of special relevance for state-certified officials.

During his speech, José Vicente Morote presented the particularities of the figure of the "concerted action" in the new Law on Public Sector Contracts, also analysing the innovative Valencian regulations in this area, composed of Law 7/2017, of 30 March, of the Generalitat, on Concerted Action for the provision of services to people in the health field and Order 3/2017, of 1 March, of the Conselleria de Sanidad Universal y Salud Pública, which regulates concerted action for the provision of services to people in the health field. The partner responsible for the area of Public and Regulatory Law at Andersen Tax & Legal concluded on the adequacy of the Valencian regulations with Community Law and the new Public Sector Contracts Law that, where appropriate, it will be necessary to analyse on a case-by-case basis the specific calls for concerted action that are formulated by the contracting authorities, in order to be able to conclude whether the assumptions for resorting to this figure exist, outside the limits of the public procurement regulations.

In her presentation, Silvia del Saz addressed the most recent developments concerning the performance of contracts, with particular emphasis on those which are common to administrative contracts and private contracts of contracting authorities: the conversion of the administration into a watchdog for the contractor's compliance with the working conditions with the possibility of applying penalties or even termination of the contract, the special conditions of environmental, social and ethical performance, the system of penalties and, finally, the modification of contracts which, while being more flexible than that laid down in the Revised Text of the Public Sector Contracts Law, still have a much more stringent legal regime than that established by European regulations.

For his part, Juan Eduardo García Osca explained the main developments and the most relevant aspects of the regulation of service contracts and service concessions, with special emphasis on the latter, given their novelty, analysing in detail the concept of "transfer of operational risk" to the concessionaire, as a determining element in order to qualify a contract as a service concession. This shall be the case where it is not guaranteed to the contractor that, under normal operating conditions, it will recover the investments made or cover the costs incurred to operate the services covered by the concession in such a way that the part of the risks transferred to the concessionaire actually exposes it to market uncertainties, covering demand or supply risks, or both.

Finally, Raquel Enciso made a presentation on public procurement of innovation, alluding to the different resources introduced by the new law to facilitate public sector entities the implementation and promotion of innovation through public procurement, as well as the different mechanisms equally suitable to achieve this end, such as the establishment of award criteria that prioritize technological innovation or special conditions of awarding that seek the same purpose, the holding of preliminary market consultations, maintaining pre-commercial public procurement outside the regulation of public sector contracts, making traditional award procedures more flexible or creating new procedures, such as the Partnership for Innovation.

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