Spain publishes guidance for low value contracts

Spain’s current public procurement law imposes strong transparency requirements for most contracts below the financial thresholds, restricting the use of non-transparent procedures to contracts value at below €15,000 (services) or €40,000 (works) only. My take is that overall this is a positive step and one that I regret Portugal not following.

That does not mean the move is painless or without difficulties. To clarify the requirements and operational implications of the move, Spain’s Procurement Regulator Body (something Portugal should have copied too…) published its first ever binding guidance specifically on Art 118 of the Spanish Public Contracts Law.

The guidance makes a very restrictive interpretation of the grounds enabling the use of the non-transparent procedure, from the requirements (deemed as cumulative) to the potential loopholes of contract splitting or recurrent yearly contracts with the exact same object. Julio Gonzales has a few extra comments (in Spanish) on the Global Politics and Law blog.

Not all contracts are showing up on ContractsFinder

Last week Ian Makgill from OpenOpps and SpendNetwork published this stat:

Having compared all of the opportunities that we’ve gathered over the past two years, with all of the opportunities on Contracts Finder, we found nearly 100,000 tenders that never made it to Contracts Finder, that’s 73% of all the tenders published in England.1 This is despite the recommendations in Lord Young’s 2015 report that all opportunities above certain thresholds should be published to Contracts Finder.

It's a big number, but one we should not be surprised to see. First, according Regulation 109 PCR2015 below the EU financial thresholds the obligation covers Central Government (from £10,000 upwards), NHS and sub-central contracting authorities (from £25,000 upwards) but not those from authorities based in Scotland, Wales or Northern Ireland.

Nonetheless this is another example of poor legislative drafting, one that does not take into account neither incentives nor the usual way contracting authorities operate. Assuming the legislative change was introduced because not enough contracts were being advertised, the status quo ante is contracting authorities do not see an advantage in advertising. As such, specific incentives need to be provided to get contracting authorities to change their practice.

Those incentives tend to be of the "stick" kind, ie negative consequences for non-compliance. But in a country with limited use of judicial review mechanisms and where secrecy of contracts awarded is the norm and not the exception the risks of being found out are quite limited. I am not arguing for the courts to be stuck with low value procurement challenges (ahem, I'm looking at you Portugal) but without clear consequences and enforcement mechanisms practice will not change.

This is, after all, the country where it is apparently acceptable for a contracting authority in large scale projects to take shortcuts with its record keeping, so who cares with what is happening in low value contracts?