Order Fom/1977/2015, Of 29 September, On The Procedure Of Tender For The Granting Of The Enabling Title For The Realization Of Railway Passenger Transport Laid Down In The Agreement Of The Council Of Ministers Of 13 June Of...

Original Language Title: Orden FOM/1977/2015, de 29 de septiembre, sobre el procedimiento de licitación para el otorgamiento del título habilitante para la realización del transporte ferroviario de viajeros previsto en el Acuerdo del Consejo de Ministros de 13 de junio de ...

Read the untranslated law here: http://www.boe.es/buscar/doc.php?id=BOE-A-2015-10481

In accordance with the provisions of paragraphs 5 and 6 of the third transitional provision of the law 39/2003, 17 November, the railway Sector, incorporated by the Act 11/2013, 26 July, support for entrepreneurs and encouraging growth and job creation measures, and Act 1/2014, 28 February , for the protection of them workers full-time partial and others measures urgent in the order economic and social, the access of new operators to them services of transportation of travelers by railway, when not is try of services of interest public or of purpose primarily tourist, is will take to out through the obtaining of titles enabling during a period transitional of time at the end of which the access to the market will be free.

In accordance with the indicated provision, the Council of Ministers shall determine the number of titles enabling grant for each line or set of lines which will pay the service regime of concurrency as well as its period of validity and by order of the Ministry of public works, the requirements and qualifications are determined to participate in the tender the criteria for awarding and phases of the procedure, the rights and obligations of railway undertakings during the period of validity of the enabling titles, the regime applicable to the modification and extinction of such enabling titles and the prerogatives of the administration.

Also, is has it application subsidiary to them cited titles, in what is compatible with the nature of them same, of the regulation contained in the text consolidated of the law of contracts of the Sector public, approved by Real Decree legislative 3 / 2011, of 14 of November, with regard to the contract of management of services public, in it relative to the call of the tender Award, implementation subject to provisions on economic benefits, compliance, resolution causes and to the formalization.

The agreement of the Council of Ministers of 13 June 2014 foresaw the granting of an additional enabling title that will allow a new rail operator providing services of passenger transport, in concurrence with train travelers, S.A., in the corridor lift.

In accordance with them provisions cited, that begin a procedure of opening of the market of the transport of travelers by railway, is expected that them companies enabled to operate in them lines railway can perform your activity contained therein is, fundamentally, to criteria of market, without prejudice of them obligations that derived directly of commitments assumed in the process of tender of the title enabling.

At the beginning of the process of progressive opening up to competition of the carriage of passengers by rail, it is important to have improvements to society, so that citizens can make use of a greater range of services at competitive prices, so it is essential that the new operator who obtains the title enabling demonstrate their willingness to remain in business in a stable way. From this mode, acquire great significance its plan of business and your plan economic financial.

The valuation in the bidding for strength, detail, and overall consistency both the business plan and the economic and financial plan are the tool to contribute to this end. By this, the evaluation of these two elements of the offer must have greater weight that it of the remaining criteria established.

To increase the transparency of the bidding process for the enabling title, is scheduled for publication, in addition to in the «Official Gazette», in the official journal of the European Union and in the profile as a contractor of the Ministry of public works.

To them bidders is them requires, in the moment of the presentation of the offer, having retrieved the license of company railway as well as solvency technical, professional and economic. However, although this has been an observation of the Council of State, with the provision of personal media and materials needed, as well as of the security certificate, the commitment to obtain them prior to award of the title enabling, as disproportionate to require all enterprises at the time of the tender are allowed. We have considered the public interest does not require this exorbitant economic effort.

Pursuant to paragraph 5 of the third transitional provision of the law of the Sector railway, Renfe travelers, S.A., successor of RENFE-Operadora in providing these services, will have an enabling title without having to resort to the bidding process.

It project is has submitted to report, between other entities and agencies of the sector railway, of the Council national of transport terrestrial, Committee State of representatives of people with disability, Council of consumers and users, Commission national of them markets and of the competition and of them communities autonomous.

By virtue, with the prior approval of the Ministry of finance and public administration, heard the Council of State, I have: article 1. General rules.

1. the granting of the title enabling for the provision of services railway of transport of travelers expected in the paragraph 5 of the available transient third of it law of the Sector railway for the joint of lines and sections determined in the agreement of Council of Ministers of 13 of June of 2014, is held through a procedure of tender public in which is guaranteed the competition effective of all them participating.

This procedure will adjust to the principles of publicity, transparency and non-discrimination, and to the provisions of this order, remain subsidiary application, which is compatible with the nature of enabling title, the rules on public services management contract contained in the law of contracts in the public sector with regard to the call for tender , to the award, to the execution except it provisions on benefits economic, to the compliance, to them causes of resolution and to the formalization. (Among others, not will be of application them articles 280.c), 281, 282, 283, 284, 285 and 288.1 and 4 of the text consolidated of the law of contracts of the Sector public, approved by Royal Decree legislative 3 / 2011, of 14 of November.

The Secretary of State for infrastructure, transport and housing will ensure transparency and equality of bidders in the tendering procedure and the available information of the procedural rules as well as all that is relevant for the tender and exploitation of service which affect cannons or the leasing of rolling stock for use of the infrastructure.

2. the enabling title has no contractual in nature, the operation of the service will be held at risk and ventura of the railway undertaking, unless she acquires economic right in relation to the risks arising from the exploitation.

Article 2. Enabling title.

Enabling title shall be granted for a period of seven years laid down in the agreement of the Council of Ministers of 13 June 2014, under the provisions of the transitional provision of law 39/2003, of 17th November, third of the railway Sector.

Enabling title content will be made as provided in resolution of adjudication, in the specifications of the invitation to tender, and the offer of the bidder, which will be compulsory in accordance with provisions in this order and by the other applicable legal and regulatory provisions.

Article 3. Requirements of the tenderers.

1 may participate in the tender procedure for the obtaining of the enabling title any company that meets the following requirements: to) have legal personality, nationality of a Member State of the European Union and residence in Spain.

(b) be the holder of the railway company licence in accordance with the law of the railway Sector.

(c) have certificate of safety in accordance with the law of the railway Sector, have initiated the processing to obtain before submitting the tender or commit themselves to get it.

(d) dispose of the material and personal resources necessary for carrying out the transport service on terms that provide for in the specifications or undertake to obtain them prior to award of the title, where the proposition is the best valued. The media must be necessary and proportionate.

(e) meet the minimum requirements of technical, professional and economic solvency to be laid down in the contract documents to ensure the proper provision of the service concerned. These requirements must be necessary and proportionate, and compliance will be credited in accordance with the provisions of article 74 et seq. of the law of contracts from the Public Sector.

(f) not be involved in any of the prohibitions of contract provided for in article 60 of the consolidated text of the law of contracts in the Public Sector, approved by Royal Legislative Decree 3/2011, from 14 November.


2 you can attend several companies presenting a single bid together, pledging to set up a railway company that meets all the requirements laid down in the preceding paragraph if its offer is be the best valued. ((All them companies that submit the offer joint must meet the requirement planned in the letter f) of the paragraph previous and, unless one of them, the planned in the letter b); (also must demonstrate compliance with that laid down in the letter e) follows: technical and professional solvency and financial solvency by one of the companies of the Group on an individual basis may be established jointly by several companies in the group. (The company or companies that certify compliance with the requirements of the letters b) and e) must have a minimum participation of 20% each in the share capital of the new company.

The company must have personality legal and is will be in the term of three months renewable by others three from the requirement of the Secretary of State of infrastructure, transport and housing planned in the article 8.

Article 4. The specifications of the invitation to tender.

1. the specification that serve of base to the tender will be informed by the Commission national of them markets and of the competition and by the address General of political economic of the Ministry of economy and competitiveness and approved by the Secretary of State of infrastructure, transport and housing, and shall state, in all case, the capacity total of infrastructure of the runner Levante as well as it initially available the conditions for the provision of complementary and ancillary services, the minimum requirements to be met by bidders in accordance with the provisions of the preceding article, the papers required and the criteria and timeframes for evaluation of bids, the defining terms of service, warranties that should provide the operator, the rights and obligations of the Administration and service operator , them powers of the Administration, is will make reference to them cannons that should satisfy is by the operator of the service, to the term of duration of the title and to the compensation of them damage caused to the administration or to third with occasion of the provision of the service.

2. in the list of penalties for cases of breach of the conditions that determined the provision of enabling title that do not involve its repeal will be established. Penalties will be imposed by the Secretary of State for infrastructure, transport and housing and must be paid on the guarantee, which must be properly replaced.

Article 5. Criteria for adjudication.

1. the evaluation of bids shall be carried out in accordance with objective and non-discriminatory criteria expressly set out in the tender specifications and will be based on consistency, credibility and level of development of the content of the offers.

2. the business plan will have a rating of 55 points out of 100.

In the valuation of the plan of business is will have in has, between others, aspects such as the analysis of demand predictable, the volume of services offered, the plan of exploitation, the material mobile to use, them resources human whose assignment to the provision of them services is initially planned, the political commercial or them facilities for the intermodality.

Within the range of rail services, tenderers will differentiate between the 'Base of railway services offer', which will be the weekly offer of services that the operator undertakes to keep during every week of the year, and the 'Plan of reinforcement of railway services', 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 his analysis of demand.

3. the economic and financial plan will have a rating of 35 out of 100 points. The valuation of this plan they shall take into account, among others, issues such as financial guarantees for the sustainability of the business plan, the adequacy and consistency of operating costs charged to the provision of the service or consistency of the analysis of expected income.

4. the measurable criteria automatically will have a value of 10 points out of 100 and may include, among other, aspects such as the number of years in which the tenderer undertakes to keep the structure of the share capital of the company, the period in which the tenderer undertakes to keep rail services 'offer Base» or certain aspects of the conditions of the service provided.

Article 6. Presentation of the offers.

1. the procedure will begin through call for proposals approved by the Secretary of State for infrastructure, transport and housing which will be published in the «Official Gazette», in the «official journal of the European Union» and in the profile as a contractor of the Ministry of public works. Them bidders must present the documentation required in the term of three months from the date of publication of the call in the «Bulletin official of the State», unless in the specification is set another greater.

The specification shall state, in your case, if required guarantee. The warranty final will be of 380,000 euros and may provide is in any of the forms planned in them articles 96 and 97 of the law of contracts of the Sector public. This warranty will affect the fulfilment of the obligations assumed by the company and breach, may seize all or part.

2. the documentation shall be submitted in three numbered envelopes. Envelope number 1 will be the documentation accrediting compliance with the necessary requirements to participate in the bidding. The envelope number 2 will contain the business plan and the economic and financial plan. The envelope number 3 will include the documentation evaluable criteria automatically.

Article 7. Procedure of tendering and evaluation of offers.

Enabling title bidding procedure will be opened, and in matters not provided in this order, will be developed in accordance with the provisions of the law of contracts in the public sector for the award of contracts.

For the evaluation of bids shall be constituted in the Ministry of public works a table in the terms provided for in article 320 of the revised text of the law of contracts in the Public Sector, its members shall be appointed by the Secretary of State for infrastructure, transport and housing, and will form part of a vocal representative of the Ministry of finance and public administration another of the economy and competitiveness and two of the promotion.

Prior to the assessment of the contents of the envelope numbers 1 and 2, the table ask report railway infrastructure managers involved in the corridor, which will be especially pronounced on the viability of the services that integrate the «offer basis of services railway' in relation to the available infrastructure capacity during the period in which it would be mandatory provision. It shall also request report to the body having assigned the functions of authority responsible for railway safety, in relation to the aspects within its competence, and as specified in the tender specifications. Both reports should be issued within a maximum period of fifteen calendar days.

The evaluation of the content of the envelope number 2 will be carried out by a Committee of experts, appointed by the Secretary of State for infrastructure, transport and housing pursuant to article 150.2 from the revised text of the law of contracts in the Public Sector.

The period for the evaluation of offers may not exceed 2 months counting from the deadline for submission, unless the specifications determined by another major.

Article 8. Granting of the enabling title.

The Bureau classified propositions supported by descending order, in accordance with the assessment criteria set out in the tender specifications.

The table will move its report to the Secretary of State for infrastructure, transport and housing which, after studies and timely reports, will require the tenderer who has submitted offer better valued by the Bureau so that it accredits: within the period of 15 working days, the Constitution of the definitive guarantee, and within the period of three months, renewable up to three others when causes duly justified , find is to the current of their obligations tax and with it security Social, the compliance of all them requirements necessary for the provision of the service including the obtaining of the certified of security and, in his case, them contracts or precontracts that were necessary.

The breach of any of those requirements by causes not attributable to the tenderer will produce the extension of the term.

Of not attend is to the requirement in them deadlines indicated, is means that the Tenderer has retired its offer, proceeding is to collect the same documentation to the tenderer following, by the order in that have remained classified them offers. In this case, the guarantee deposited will be fully seized.

Upon receipt and verification of supporting documentation of compliance with all the requirements for the provision of the service, the Secretary of State for infrastructure, transport and housing will provide the enabling title, which will be formalized in administrative document that conforms to the conditions of the invitation to tender.


The award will be published in the «Official Gazette», in the «official journal of the European Union» and in the profile as a contractor of the Ministry of public works.

Article 9. Home of the provision of the service.

The bidder must initiate the realization of transport within a period of six months from the granting of the enabling title unless a lower period is provided for in the contract or in the offer and, in any case, shall be obliged to initiate the provision of the services included in its proposal as "Supply Base of railway services".

The undue delay of the start of the service will result in the partial guarantee seizure, except that occur for reasons beyond the company.

Article 10. Conditions for the provision of the service.

The bidder shall be obliged to provide the services included in its proposal as "Supply Base of railway services" for a minimum period of three years, which may be higher if it has pledged to do this according to the criteria established in the contract. May provide also any others services whenever is met the standards of general application to the transport of travelers by railroad.

In addition, the company will be obliged to comply with the conditions to be expressly determined in the contract.

Article 11. Modification of the «supply Base of services railway».

1. during the period in which the provision of services under «Supply Base of railway services» is mandatory, the bidder may modify this "supply Base" downward up to 15% of the annual trenes-km offered, to conform to the conditions of demand. No there will be no limitation for the increase of services.

Modification downward «Offer based on railway services» shall be notified to the Directorate General of land transportation.

2 trades that are also the "offer of services railway» only may decrease by more than 15% established in the preceding paragraph, when any of the following circumstances occurs: to) when it is necessary to make substantial adjustments to the allocation of infrastructure capacity. In this case, them administrators of infrastructure must inform to the company railway of them reasons by which is necessary modify it award of capacity and, to its time, it company it moved to the address General of transport terrestrial, communicating also, when appropriate, them changes that propose in the provision of these services.

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

(c) in case of force majeure or emergency situations.

(((The modifications planned in them paragraphs to), b) and c) previous will be agreed by the Secretary of State of infrastructure, transport and housing, ears, in your case, the company railway and the administrator of the infrastructure affected.

Article 12. Prerogatives of the administration.

The Administration holds the prerogative of interpret the content of the title enabling, resolve them doubts that is raised in the provision of the service, modify it by reasons of interest public and agree its revocation.

Article 13. Reversal of the enabling title.

He title enabling may revoke is when the company fails to comply with them requirements necessary for its granting or those considered essential in the specification of it tender, when leave of provide them traffic that can result mandatory in accordance with it willing in this order, in the specification or in its offer and when leave or cessation in the provision of them services.

Article 14. Rights and obligations of the holders of qualifying titles.

1. the company awarded of the title enabling will have right to exploit them services of transport railway of travelers in them lines to affect the title in concurrency with the operator pre-existing and in accordance with its own interest commercial, and can establish them conditions that deems from within them limits that derived of it established in the title enabling or the legislation of the sector railway.

2 the company has been awarded the title of enabling and train travelers, S.A. shall be obliged in any case a: to) provide statistical information which is required by the Ministry of public works.

(b) carry an accounting analytical separate for the runner Levante, in accordance with the standards and principles accounting generally accepted, that allow identify it all of them income and expenses incurred, them active and passive used, as well as them flows of box generated. Cited separate accounting must be available to the Commission national markets and competition before September 30th of the period subsequent to that relates, being subject, in any case, to conditions of confidentiality.

(c) develop and send to the Ministry of promotion for its approval the conditions General of recruitment of the transport of travelers, according to it planned in the article 59 of the law of the Sector railway.

(d) develop standards and a quality management system, respecting the levels laid down in article 59 of the law of the railway Sector.

(e) comply with all the obligations arising from the regulations of the railway Sector, approved by Royal Decree 2387 / 2004, of 30 December.

Article 15. Application of capacity to the infrastructure managers.

The company that provided the enabling title may request infrastructure managers ability to provide the services for which it is enabled, in the terms established by the law of the railway Sector and its implementing regulations.

Specifications will determine the traffic that may not be due to its incompatibility with the provision of services declared a public service obligation. This ban will remain current insofar as the services continue to declared as obligation of service public.

Provision additional first. Enabling title of train travelers, S.A.

Train travelers, S.A. will have a title enabling to operate in the corridor Levante, in accordance with the provisions of the third transitional provision of the law of the railway Sector, being subject to the same conditions laid down in articles 12 and 14 of this order.

Second additional provision. Obligations of infrastructure managers.

Purposes as provided in article 4, infrastructure managers must notify the General Directorate of road transport in total available capacity in the lines, stations and other facilities affected by enabling title, as well as the capacity actually used in the years 2013 and 2014 and hours of service force, so that this information can be incorporated to the specifications of the invitation to tender , so that tenderers may raise its offer according to it. They shall also communicate conditions for supporting and auxiliary services as accurately as possible.

Infrastructure managers affected by the granting of the title enabling, in addition to awarding its use, must provide necessary services at the stations to the new operator or spaces required to perform them by himself. Also, must include them new services in the systems of information to them users and must put to disposal of them companies railway of form not discriminatory information in time real on them possible delays of trains exploited by another company railway that affect to them main links.

Provision additional third. Rental and maintenance of material railway.

RENFE rental of Material railway, S.A. and Renfe manufacturing and maintenance, S.A. shall render them services of shape transparent, objective and not discriminatory.

First final provision. Modification of the order FOM / 897 / 2005, of 7 of April, relative to the statement on the network and to the procedure of awarding of capacity of infrastructure railway.

A section 4 is added to article 10 of the order FOM/897/2005, of April 7, concerning the network statement and the procedure for the award of capacity of railway infrastructure, with the following content: «4. also capacity-allocation of railway infrastructure for the provision of railway transport services may request the tenderer who submitted the offer improvement valued in the bidding process for an enabling title than those provided in the» third transitional provision of the law of the railway Sector and that has deposited the definitive guarantee. However, this capacity-allocation may not be effective as to not grant enabling title.»

Second final provision. Procedure for the award of infrastructure capacity.

1. during the fiscal year in which occurs the effective entry into the market of the railway company has been granted that enabling title, as well as subsequent that the provision of the services included in «Offer based on railway services» is mandatory, infrastructure managers will attend, in line with the report that had been issued in compliance with the provisions in article 7 , the requests of capacity of the new operator to to provide them services included in your «offer Base of services railway».


To this end, they shall apply the coordination of requests procedure laid down in article 8 of the order FOM/897/2005, of April 7, concerning the procedure for allocation of railway infrastructure capacity and the network statement.

On the other hand, and with respect to the capacity requested by the tenderer exceed such "Supply Base of railway services", administrators of infrastructure they also apply the principle of coordination to make compatible it with the capacities already allocated in the existing service hours.

2. from the entry in force of the present order, them administrators of infrastructure railway shall take them measures necessary for accommodate them deadlines intermediate established in the article 7 of the order FOM / 897 / 2005, of 7 of April, in order allow that is incorporate it request of the awarded of the title enabling to the schema of service corresponding to the year following to the of award of said title.

Third final provision. Implementing measures.

The address General of transport terrestrial shall adopt the measures necessary for the compliance of this order.

Available to finish fourth. Skill-related title.

This order is issued on the basis of provisions in article 149.1. 21st of the Constitution, which attributes to the State exclusive jurisdiction over railways and inland transport travelling in the territory of more than one autonomous community.

Available to finish fifth. Entry into force.

This order shall enter into force the day of its publication in the «Official Gazette».

Madrid, 29 of September of 2015.-it Minister of promotion, Ana María Pastor Julián.