According to the provisions of paragraphs 5 and 6 of the third transitional provision of Law 39/2003 of 17 November of the Railway Sector, incorporated by Law 11/2013 of 26 July, of measures to support the entrepreneur In the case of the Commission, the Commission has been in a position to take the necessary steps to ensure that the services provided by the Member States are not fully implemented and that the Commission is not in a position to take the necessary measures. carriage of passengers by rail, in the case of services of public interest or of purpose Tourism priority will be carried out through the acquisition of enabling securities during a transitional period of time at the end of which market access will be free.

As set out in the above provision, the Council of Ministers will determine the number of securities to be awarded for each line or set of lines in which the service will be provided under the competition rules. as well as its period of validity and through the Order of the Ministry of Public Works, the conditions and conditions required to participate in the tender, the applicable award criteria and stages of the procedure, the rights and obligations of the railway undertakings during the period of validity of the qualifying titles, the regime applicable to the modification and extinction of such enabling securities and the prerogatives of the Administration.

Also, the subsidiary application is available to the aforementioned titles, in whatever is compatible with the nature of the same, of the regulation contained in the recast text of the Law of Public Sector Contracts, approved by Royal Decree of 14 November 2011, of 14 November 2011, in respect of the contract for the management of public services, as regards the call for tenders, the award, the execution of the contract, except the provision of financial services, compliance, to the causes of resolution and to formalization.

The Council of Ministers ' Agreement of 13 June 2014 provided for an additional enabling title which will enable a new rail operator to provide passenger transport services, in concurrency with Renfe Travelers, S.A., in the Levante corridor.

According to the above mentioned provisions, which initiate a procedure of opening the market for the carriage of passengers by rail, it is anticipated that the companies qualified to operate on the railway lines can carry out their (a) activity, in particular, to market criteria, without prejudice to the obligations arising directly from commitments entered into in the tendering process for the enabling title.

the beginning of the process of progressive opening up to competition for rail passenger transport, it is important that there be improvements for society, so that citizens can have a greater supply of services to the public. competitive prices, so it is essential for the new operator to obtain the enabling title to demonstrate its willingness to remain in the business in a stable manner. In this way, they acquire great importance in their business plan and financial economic plan.

The assessment in the tender of the strength, detail and overall coherence of both the business plan and the financial economic plan are the tool to contribute to this end. Therefore, the assessment of these two elements of the offer must have greater weight than the other criteria established.

In order to increase the transparency of the tendering process for the enabling title, its publication is foreseen, in addition to the "Official State Gazette", in the Official Journal of the European Union and in the contracting profile of the Ministry of Development.

The tenderers are required, at the time of the submission of the offer, to have obtained the railway undertaking licence as well as technical, professional and economic solvency. However, although this has been the subject of an observation by the Council of State, with regard to the provision of the necessary personal and material resources, as well as the safety certificate, the commitment to obtain them before the the award of the enabling title, as it would be disproportionate to require all undertakings at the time of the invitation to tender. It has been considered that the public interest does not require this exorbitant economic effort.

In accordance with the provisions of paragraph 5 of the third transitional provision of the Law of the Railway Sector, Renfe Travelers, S.A., successor to RENFE-Operadora in the provision of these services, will have a title enabling no need to go to the tender process.

The project has been submitted to report, among other entities and agencies of the railway sector, of the National Council of Land Transports, State Committee of representatives of persons with disabilities, Council of Consumers and Users, National Commission of the Markets and Competition and the Autonomous Communities.

In its virtue, with the prior approval of the Ministry of Finance and Public Administrations, heard by the State Council, I have:

Article 1. General rules.

1. The granting of the enabling title for the provision of rail passenger transport services provided for in paragraph 5 of the third transitional provision of the Railway Sector Act for the set of lines and sections determined in the Council of Ministers Agreement of 13 June 2014, shall be carried out by means of a public tender procedure in which the effective competence of all participants is ensured.

This procedure shall be in accordance with the principles of advertising, transparency and non-discrimination, and the provisions of this order, being of subsidiary application, in so far as it is compatible with the nature of the enabling title, the rules relating to the contract for the management of public services, as laid down in the law on public sector contracts, as regards the call for tenders, the award, the execution of the contract, except the provisions on benefits The Commission has also been responsible for the implementation of the budget. Among others, Articles 280.c), 281, 282, 283, 284, 285 and 288.1 and 4 of the recast of the Law on Public Sector Contracts, approved by Royal Legislative Decree 3/2011 of 14 November, will not apply.

The Secretariat of State for Infrastructure, Transport and Housing shall ensure the transparency and equality of tenderers in the award procedure and provide the information available on procedural rules. as well as all that is relevant to the tendering and operation of the service as it affects the leasing of the rolling stock or the fees for the use of the infrastructure.

2. The enabling title has no contractual nature, the operation of the service shall be carried out at the risk and sale of the railway undertaking, without acquiring any economic rights in relation to the risks arising from the operation.

Article 2. The enabling title.

The enabling title shall be granted for the seven-year period laid down in the Council of Ministers ' Agreement of 13 June 2014, pursuant to the provisions of the third transitional provision of Law 39/2003 of 17 May 2014. November, from the Railway Sector.

The content of the enabling title shall be composed of the terms of the award resolution, the tender documents, and the tender of the successful tenderer, which shall be binding in accordance with the provisions of this order. and in the other applicable laws and regulations.

Article 3. Requirements of the tenderers.

1. You may participate in the tendering procedure for obtaining the enabling title any undertaking that meets the following requirements:

(a) Having legal personality, nationality of a Member State of the European Union and domicile in Spain.

b) To be the holder of the railway undertaking licence in accordance with the provisions of the Railway Sector Law.

c) Dispose of a security certificate in accordance with the Law of the Railway Sector, have initiated the processing to obtain it before submitting the offer or commit to obtain it.

(d) Dispose of the material and personal means necessary for the performance of the transport service in the terms provided for in the contract documents or to undertake to obtain them before the award of the title, in the case that your proposal is the best value. The means must be necessary and proportionate.

e) to meet the minimum technical, professional and economic solvency requirements to be determined in the specification to ensure the proper provision of the service concerned. These requirements shall be necessary and proportionate and their compliance shall be credited in accordance with the provisions of Article 74 et seq. of the Public Sector Contracts Act.

(f) Not to be involved in any of the prohibitions on hiring provided for in Article 60 of the recast of the Law on Public Sector Contracts, approved by Royal Legislative Decree 3/2011 of 14 November.

2. A number of undertakings may be submitted jointly by submitting a single tender, committing themselves to constitute a railway undertaking which meets all the conditions laid down in the previous paragraph if its offer proves to be the best value. All undertakings submitting the joint offer shall comply with the requirement laid down in point (f) of the preceding paragraph and at least one of them as provided for in point (b); the fulfilment of the provisions referred to in point (e) shall also be justified. the economic solvency of one of the companies of the group on an individual basis and the technical and professional solvency may be jointly established by several undertakings of the group. The undertaking (s) certifying compliance with the requirements of points (b) and (e) shall have a minimum share of 20% each in the share capital of the new undertaking.

The company must have legal personality and will be constituted within three months to be extended by three others since the requirement of the Secretary of State for Infrastructure, Transport and Housing provided for in the article. 8.

Article 4. The tender specifications.

1. The contract of the tender will be informed by the National Commission of the Markets and the Competition and by the Directorate General of Economic Policy of the Ministry of Economy and Competitiveness and approved by the Secretary of State of the Infrastructure, Transport and Housing, and in any case will specify the total infrastructure capacity of the Levante corridor as well as the initially available infrastructure, the conditions for the provision of complementary and ancillary services, the minimum requirements to be met by tenderers in accordance with the provisions of the Article the documentation to be provided and the criteria and time limits for the assessment of the tenders, the conditions defining the service, the guarantees to be provided by the operator, the rights and obligations of the Administration and the operator of the service, the powers of the Administration, reference shall be made to the fees to be met by the operator of the service, to the term of duration of the title and to the compensation of the damage caused to the Administration or to third parties on the occasion of service delivery.

2. Penalties shall be laid down in the contract for cases of non-compliance with the conditions which have determined the granting of the enabling title which do not involve revocation. The penalties shall be imposed by the Secretary of State for Infrastructure, Transport and Housing and shall be effective on the guarantee, which shall be properly replenalised.

Article 5. Award criteria.

1. The assessment of tenders shall be carried out on the basis of objective and non-discriminatory criteria set out in the tender documents and shall be based on the consistency, likelihood and level of development of the content of the tenders.

2. The business plan will have a valuation of 55 points on a total of 100.

In the assessment of the business plan, consideration will be given, among others, to aspects such as the foreseeable demand analysis, the volume of services offered, the operating plan, the mobile material to be used, the resources (a) human rights, including the provision of services, the provision of services is initially envisaged, commercial policy or facilities for intermodality.

Within the offer of rail services, the bidders will differentiate between the "Base Offer of Rail Services", which will be the weekly offer of services that the operator undertakes to maintain during all weeks of the year, and the "Railway Services Reinforce Plan", which will include the provision of additional services to be offered at certain times of the year, or in successive years of the title, according to its demand analysis.

3. The financial economic plan will have a 35-point rating on 100. The assessment of this plan shall take into account, inter alia, aspects such as financial guarantees for the maintenance of the business plan, the adequacy and consistency of the operating costs attributed to the provision of the service or the consistency of the expected revenue analysis.

4. The criteria for automatic evaluation shall be assessed at 10 points out of 100 and may include, inter alia, aspects such as the number of years in which the tenderer undertakes to maintain the structure of the social capital of the company. the time limit in which the tenderer undertakes to maintain the "Base Offer of Rail Services" or certain aspects related to the conditions of the service provided.

Article 6. Submission of tenders.

1. The procedure shall be initiated by means of a call approved by the Secretary of State for Infrastructure, Transport and Housing, to be published in the Official Journal of the State, in the Official Journal of the European Union and in the Contractor of the Ministry of Public Works. Tenderers shall submit the necessary documentation within three months of the date of publication of the call in the Official Gazette of the State, unless the statement of objections establishes a further one.

The specification will, if appropriate, specify whether a provisional guarantee is required. The final guarantee shall be EUR 380,000 and may be provided in any of the forms provided for in Articles 96 and 97 of the Public Sector Contracts Act. This guarantee shall be subject to compliance with the obligations assumed by the undertaking and, in the event of non-compliance, may be seized in whole or in part.

2. The documentation must be presented in three numbered envelopes. The documentation of compliance with the requirements necessary to participate in the invitation to tender shall be entered in the envelope number 1. The envelope number 2 will contain the business plan and the financial economic plan. The envelope number 3 will include documentation relating to the evaluable criteria automatically.

Article 7. Tender procedure and assessment of tenders.

The tendering procedure for the enabling title shall be open and, as far as is not provided for in this order, shall be developed in accordance with the provisions of the public sector contract law for the award of contracts. contracts.

In order to evaluate the bids, a Bureau will be set up under the terms of Article 320 of the consolidated text of the Law on Public Sector Contracts. Secretary of State for Infrastructure, Transport and Housing, and will form part of it a vocal representative of the Ministry of Finance and Public Administrations, another of the Economy and Competitiveness Ministry and two of the Fomento.

Before assessing the contents of the envelopes numbers 1 and 2, the Bureau will request to inform the railway infrastructure managers involved in the corridor, who will have to decide in particular on the the viability of the services that integrate the "Base Offer of Rail Services" in relation to the capacity of infrastructure available during the time period in which its provision would be compulsory. It shall also request a report from the body entrusted with the functions of the authority responsible for railway safety, in relation to the aspects of its competence and as specified in the tender documents. Both reports must be issued within a maximum of 15 calendar days.

The assessment of the content of the envelope number 2 shall be carried out by an expert committee appointed by the Secretary of State for Infrastructure, Transport and Housing in accordance with the provisions of Article 150.2 of the text. recast of the Public Sector Contracts Act.

The time limit for the assessment of tenders may not exceed 2 months from the deadline for submission, unless the specification determines a further one.

Article 8. Granting the enabling title.

The Table shall classify the proposals accepted in descending order, in accordance with the assessment criteria set out in the tender specifications.

The Bureau will forward its report to the Secretary of State for Infrastructure, Transport and Housing, which, after the appropriate studies and reports, will require the tenderer to submit the best offer to the Bureau for accredit: within a period of 15 working days, the lodging of the final security, and within three months, which may be extended for up to three months when duly justified causes are present, subject to the current of their tax obligations and with Social Security, the fulfillment of all the necessary requirements for the the provision of the service including obtaining the security certificate and, where appropriate, the contracts or pre-contracts that are necessary.

Failure to comply with any of the requirements for reasons not attributable to the tenderer will result in the extension of the deadline.

If the requirement is not met within the prescribed time-limits, the tenderer shall be deemed to have withdrawn its tender, and the following tenderer shall be required to obtain the same documentation in the order in which the tenders are classified. offers. In this case, the collateral deposited will be fully seized.

Following receipt and verification of the documentation of compliance with all the requirements necessary for the provision of the service, the Secretary of State for Infrastructure, Transport and Housing will grant the enabling title, which will be formalized in an administrative document that meets the conditions of the tender.

The award will be published in the "Official Journal of the State", in the "Official Journal of the European Union" and in the contractor profile of the Ministry of Public Works.

Article 9. Starting the service delivery.

The contracting undertaking must initiate the carrying out of the transport within six months of the granting of the enabling title unless a lower period of time has been established in the tender or the tender, and in any event, be required to initiate the provision of the services included in its offer as "Base Offer of Rail Services".

The unjustified delay in the commencement of the service will result in the partial seizure of the guarantee, unless it occurs for reasons other than the undertaking awarded.

Article 10. Service delivery conditions.

The contracting company will be obliged to provide the services included in its offer as "Offer Base of Rail Services" for a minimum period of three years, which may be greater if it has committed to it with the criteria to be laid down in the specification. It may also provide any other services provided that the rules of general application for the carriage of passengers by rail are complied with.

The company shall also be required to comply with the conditions expressly laid down in the specification.

Article 11. Modification of the "Base Offer of Rail Services".

1. During the period in which the provision of the services included in the "Base Offer of Rail Services" is mandatory, the contracting undertaking may amend that "Base Offer" downwards by up to 15% of the year-on-year (s) offered, to meet the conditions of the demand. There will be no limitation for the increase of services.

The downward modification of the "Base Offer of Rail Services" must be communicated to the General Directorate of Land Transportation.

2. Traffics constituting the "Base Offer of Rail Services" may only be reduced by more than 15% as set out in the preceding paragraph, when any of the following occurs:

a) When substantial adjustments are required in the allocation of infrastructure capacity. In this case, the infrastructure managers must inform the railway undertaking of the reasons why it is necessary to modify the capacity allocation and, in turn, the company will transfer it to the Directorate General for Transport Terrestrial, also communicating, where appropriate, the changes it proposes in the provision of these services.

b) For reasons of public interest, due to changes over the circumstances that were taken into account at the time of the award of the enabling title in relation to the demand for the services.

c) In case of force majeure or emergency situations.

The amendments referred to in paragraphs (a), (b) and (c) above shall be agreed by the Secretary of State for Infrastructure, Transport and Housing, and, where appropriate, the railway undertaking and the administrator of the affected infrastructure.

Article 12. Prerogatives of the Administration.

The Administration has the prerogative to interpret the content of the enabling title, to resolve any doubts raised in the provision of the service, to modify it for reasons of public interest and to agree to its revocation.

Article 13. Revocation of the enabling title.

The enabling title may be revoked when the undertaking fails to comply with the requirements for its award or those deemed essential in the tender documents, when it ceases to provide the traffics which may result required in accordance with the provisions of this order, in the contract documents or in its tender and where it leaves or ceases to provide the services.

Article 14. Rights and obligations of holders of enabling securities.

1. The contracting authority of the enabling title shall have the right to exploit rail passenger transport services on the lines to which it affects the title in competition with the incumbent and in accordance with its own commercial interest, being able to establish the conditions which it considers to be within the limits resulting from the provisions of the enabling title or the legislation of the railway sector.

2. The contracting company of the enabling title and Renfe Travellers, S.A. shall in any event be obliged to:

a) Carry out the statistical information required by the Ministry of Public Works.

b) Carry out separate analytical accounting for the Levante corridor, in accordance with generally accepted accounting rules and principles, which allows the identification of all revenue and expenditure incurred, assets and liabilities used, as well as the cash flows generated. The separate accounts must be made available to the National Markets and Competition Commission before 30 September of the financial year after which it relates, subject, in any event, to conditions of confidentiality.

c) Develop and refer to the Ministry of Development for approval the general conditions for the hiring of passenger transport, as provided for in Article 59 of the Law on the Rail Sector.

d) Develop standards and a quality management system, respecting the levels of established in Article 59 of the Law of the Rail Sector.

e) Fulfill all obligations arising from the Railway Sector Regulations, approved by Royal Decree 2387/2004, of December 30.

Article 15. Capacity request to infrastructure managers.

The company holding the enabling title may request infrastructure managers to provide the capacity to provide the services for which it is enabled, in the terms set out in the Sector Law. Railway and its development regulations.

The specifications will determine the traffics that cannot be performed due to their incompatibility with the provision of services declared public service obligation. This prohibition shall remain in force as long as the services continue to be declared as a public service obligation.

Additional disposition first. Enabling title of Renfe Travellers, S.A.

Renfe Travelers, S.A. will have an enabling title to operate in the Levante corridor, in accordance with the provisions of the transitional provision of the Law of the Railway Sector, which is subject to the same conditions. conditions laid down in Articles 12 and 14 of this order.

Additional provision second. Obligations of infrastructure managers.

For the purposes of Article 4, infrastructure managers shall report to the Land Transport Directorate-General the total capacity available on the lines, stations and other facilities concerned for the enabling title, as well as the capacity actually used in the years 2013 and 2014 and the service schedule in force, so that this information can be incorporated into the tender specifications, so that the tenderers can raise their offer according to the same. They shall also communicate the conditions for the provision of supplementary and ancillary services as accurately as possible.

Infrastructure managers affected by the granting of the enabling title, in addition to awarding their use, must provide the necessary services at the stations to the new operator or the indispensable spaces to perform them on their own. They should also include new services in the information systems for users and should make available to railway undertakings in a non-discriminatory way information in real time on possible train delays. operated by another railway undertaking affecting the main links.

Additional provision third. Rental and maintenance of railway equipment.

Renfe Rental de Material Ferroviario, S.A. and Renfe Manufacturing and Maintenance, S.A. will provide services in a transparent, objective and non-discriminatory manner.

Final disposition first. Amendment of Order FOM/897/2005 of 7 April 2005 concerning the declaration on the network and the procedure for the allocation of railway infrastructure capacity.

A point 4 is added to Article 10 of Order FOM/897/2005 of 7 April 2005 concerning the declaration on the network and the procedure for the allocation of railway infrastructure capacity, with the following content:

" 4. It may also apply for the award of railway infrastructure capacity for the provision of rail transport services by the tenderer who has submitted the improved offer valued in the tendering process for an enabling title of those provided for in the third transitional provision of the Law of the Railway Sector and which has deposited the definitive guarantee. However, this capacity allocation may not be effective as long as the enabling title is not granted. "

Final disposition second. Procedure for the allocation of infrastructure capacity.

1. During the financial year in which the effective entry into the market of the railway undertaking has been granted to the railway undertaking, and in subsequent cases where the provision of the services included in the railway undertaking is compulsory. The "Base Offer of Rail Services", the infrastructure managers shall, in line with the report which they have issued in compliance with the provisions of Article 7, address the new operator's requests for capacity provide the services included in its "Base Offer of Rail Services".

To this end, they shall apply the procedure for the coordination of applications laid down in Article 8 of Order FOM/897/2005 of 7 April 2005 concerning the declaration on the network and the procedure for the award of railway infrastructure.

On the other hand, and with respect to the capacity requested by the successful tenderer to exceed that "Base Offer of Rail Services", the infrastructure managers will also apply the principle of coordination for make it compatible with the capabilities already awarded in the current service schedule.

2. Since the entry into force of this Order, railway infrastructure managers shall take the necessary measures to accommodate the intermediate periods laid down in Article 7 of Order FOM/897/2005 of 7 April 2005 at the end of allow the application of the successful tenderer to be incorporated into the service timetable for the year following the year of the award of that title.

Final disposition third. Implementing measures.

The General Directorate of Land Transportation will take the necessary steps to comply with this order.

Final disposition fourth. Competence title.

This order is issued in accordance with the provisions of Article 149.1.21a of the Constitution, which attributes to the State exclusive competence on the railways and land transports that circulate in the territory of more than one Autonomous Community.

Final disposition fifth. Entry into force.

This order shall enter into force on the day of its publication in the "Official State Gazette".

Madrid, September 29, 2015. -Minister of Development, Ana Maria Pastor Julian.