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Fair Competition – New Law in Spain on Public Sector Contracts

Mar 29, 2018 08:43 AM
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Written by Aproser (Asociación professional de compañas privadas de servicios de seguridad)
Edited /English translation by | Stefan Huber | International Security Ligue | ComGroup

At the end of 2017, the procedure for the new Law on Public Sector Contracts was concluded at the Spanish Parliament. Among the leading novelties that the new Law introduces are the need to respect the Collective Agreement in the processes of contracting security services and the commitment of quality over price in the award criteria

On October 20, 2017, the Congress of Deputies completed the processing of the new Law on Public Sector Contracts (ACCESS TO THE LAW). A law transposing the new Public Procurement Directives was approved into Spanish Law in February 2014.

A long process benefited from an intense debate in the Cortes Generales. It concluded with the rejection by the Congress of Deputies of three amendments introduced in the Senate's proceedings that called into question the advances made in favor of socially responsible contracting.

A process in which the sectoral social agents have taken part, with an extraordinary role for the Private Security Sector Observatory, is positioned from the initial draft bill to the final processing of the law in Congress (a reference to the Spanish text: www.observatorioseguridad.es).

There are many changes introduced that only a clear legal analysis will allow identifying:

What are the primary economic and labor considerations that after the entry into force of this new law should be taken into account when drafting the processes of contracting private security services?



Law Contracts Items

The new law specifies the market price when preparing a tender budget for private security services (new Articles 100 (2) and 102 (3)).

It is necessary to break down the direct and indirect costs and other costs calculated for their determination

The wage costs estimated by the reference labor agreement must be shown separately and broken down by professional category. Since there is only one State Sectoral Agreement in the whole of the national territory, this is the only applicable agreement in place where all services are provided.

The budget should not only include wage costs (Article 101 (2)).

The calculation of the estimated value of a call for tenders must not only take into account wage costs (calculated according to the criteria of the State collective agreement) but must also include costs arising from the material implementation of services, structural overheads, and industrial profits.

Tenderers should know the details of the conditions of workers assigned to services (Article 130).

The new law requires that the previous contractor must be informed not only about the collective agreement of application (Security Companies Collective Agreement) and the category details, but also about the 

*   Type of contract
*   Working day
*   Date of seniority
*   Expiration of the contract
*   Annual gross salary of each worker
*   All agreements in force applicable to workers affected by the subrogation

Quality must take precedence over price in the criteria for the award of private security services (Article 145 (3)(g) and Article 145 (4)).

Not only does the law preclude private security services from having a single award criterion (therefore, mere auctioning is prohibited), but the inclusion in Annex IV requires that quality criteria represent at least 51 percent of the assignable score in the evaluation of bids.

An offer that does not comply with the current sectorial collective agreement must be regarded as abnormally low (Article 149).

The law obliges contracting authorities to reject a tender if it finds that it is abnormally low because it does not comply with existing sectorial collective agreements.

The wage conditions of the sectorial collective bargaining agreement are binding for the duration of the contract (article 122).

It is an obligation to include in the specifications of specific administrative clauses the responsibility of the successful bidder to comply with the wage conditions of workers under the collective bargaining agreement.

Contracting authorities may include full compliance with the applicable sectorial collective agreements as a unique implementing condition (Article 202).

Among the purposes of social clauses, compliance with applicable sectorial collective agreements may be included.

Failure to comply with the wages of the collective bargaining agreement and repeated delays in the payment of wages have significant consequences for non-compliant workers (Articles 201 and 211).

Repeated non-compliance or delays in the payment of wages or the application of wage conditions lower than those resulting from collective agreements, if severe and intentional, should lead to the imposition of penalties.

Moreover, the non-payment, during the performance of the contract, of the contractor's wages to the workers who were participating in it, or failure to comply with the conditions established in the collective agreements in force for this purpose, constitutes a violation of the terms established in the collective agreements in effect.

Further informations

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