Title II of Law 12/2012 of 26 December on urgent measures to liberalize trade and certain services, concerning support for the export of defense equipment by the Ministry of Defense, adds a new the mechanism of export support to those already existing in the Spanish legal system, developing the capabilities of the Ministry of Defense in the field of the management of defense material programs for export.

This law enables the Ministry of Defense, in compliance with the terms established in a contract concluded between the Government of Spain and another foreign government, to carry out the hiring actions in the name and representation of that foreign government, supervision, logistical support and transfer of technology necessary for the delivery to the same of a given defence material, in the terms contained in Article 8 of that Law.

Title II of Law 12/2012, of December 26, has been developed by Royal Decree 33/2014, of January 24.

For its part, the Royal Decree 454/2012, of 5 March, for which the basic organic structure of the Ministry of Defense is developed, modified by Royal Decree 524/2014, of 20 June, assigns to the Subdirección General de International Relations of the General Directorate of Armament and Material, among others, the role of " Promoting institutional support for the internationalization of the Spanish defense industry, coordinating the international promotion of alienation of movable property and defence products and, in coordination with the Directorate-General for Policy, Defense, direct the actions of the aggregates and defense counselors. "

The process of providing defense material through a contract between the Government of Spain and another foreign government is complex and time-consuming, so it is necessary to address the mechanisms of management, monitoring, implementation and control of the programmes which, where appropriate, should be established for these activities.

The procurement with Spanish companies in the defence sector as a result of the contract between governments is excluded from both Directive 2009 /81/EC of the European Parliament and of the Council of 13 July 2009 on coordination of procedures for the award of certain works, supply and service contracts by contracting authorities or entities in the fields of defence and security, such as Law 24/2011 of 1 August 2000, of the public sector contracts in the fields of defence and security, and therefore, without prejudice to what is being done, establish in the contract concluded between the Government of Spain and another foreign government and in all the provisions of Title II of Law 12/2012 of 26 December, urgent measures for the liberalization of trade and certain services, the Conclusion of contracts with these companies will be governed by the recast text of the Law on Public Sector Contracts, approved by Royal Legislative Decree 3/2011 of 14 November.

During processing the project has been reported by the Advisory Board of Administrative Contracting.

Finally, the third final provision of Royal Decree 33/2014, of 24 January, empowers the Minister of Defence, in the field of his competence, to lay down rules for the development and implementation of that royal decree.

In its virtue, I have:

Article 1. Object.

This ministerial order aims to develop the Royal Decree 33/2014 of 24 January, for which Title II of Law 12/2012 of 26 December, of urgent measures of trade liberalization and certain measures is developed. services, laying down the rules for the conclusion of a contract between the Government of Spain and another foreign government, hereinafter the contract between governments.

Article 2. Acts conducive to concluding a contract between governments.

1. In accordance with Article 2 of Royal Decree 33/2014 of 24 January 2014, actions leading to the conclusion of contracts between governments, as provided for in Article 6 of Law 12/2012 of 26 December 2012, will be the responsibility of the Secretary of State for Defense.

2. In the exercise of this competence, the Secretary of State of Defense may carry out the following actions:

a) Preliminary contacts necessary with the foreign government, at the appropriate levels of interlocution at each moment, in application of the privileges conferred to the Directorate General of Armament and Material in the Royal Decree 454/2012, of 5 March, for which the basic organic structure of the Ministry of Defense is developed, as amended by Royal Decree 524/2014 of 20 June. In coordination with the Directorate General of Defense Policy, he will lead the actions of the defense attachés and defense advisors to ensure the success of the negotiations for the signing of a government-to-government contract.

b) Analysis of the initial request made by the foreign government, from a technical, financial and risk management point of view. The capacity of the Spanish public administration to deal with the commitments that may result from the contract, as well as the solvency of the potential companies involved, will be assessed.

The existence of international agreements in force with that foreign government and the relations of both countries in the fields of armaments and material will be valued.

c) Order the start of a contract file with the foreign government. This file will have the mandatory reports of the General Legal Counsel of Defense and the General Intervention of Defense.

d) Set the bases for signing a contract that will propose to that government.

e) Define the requirements of the supply and service to offer, proposing the most appropriate operational or functional solution to the need raised.

f) To estimate the costs incurred by the Ministry of Defense, which, if any, will be reviewed to avoid the cost or economic benefit of the Department.

g) Where appropriate, request and evaluate the binding offers to the companies concerned.

h) Develop a schedule of payments for the future contract between governments that will ensure that, at all times, the balance available in the fund situation account will allow to deal with:

1. º Compensation of all types to be assumed, including the costs associated with a possible termination of the contract for reasons not attributable to the companies and other risks identified.

2. The payments to be made to the companies in the following six months.

3. The advance payment of the costs incurred by the Ministry of Defense in the following three months.

i) Prepare the draft contract between governments, ensuring, where appropriate, the compliance of the company and all the Ministry of Defense agencies involved in their subsequent execution.

Article 3. Content of the contract with the foreign government.

1. Contracts between governments, in addition to the extremes they may collect pursuant to Article 3 of Royal Decree 33/2014 of 24 January, may include the following paragraphs:

a) Staff Regulations exchanged between both governments.

b) Regime of responsibilities of both governments.

2. In any event, the clause of the contract shall, in addition to the extremes laid down in Article 3.2 of Royal Decree 33/2014, be collected on 24 January, the following:

a) Reimbursement of expenses incurred to the Ministry of Defense.

b) Contract resolution causes.

3. Pursuant to Article 3.3 of Royal Decree 33/2014 of 24 January 2014, in the case of contracts between governments, it may be noted that the Government of Spain reserves the right to complete or partial termination of the contract between governments. for reasons of public interest. The contractual document shall define the causes of public interest and the effects of the termination of the contract.

Article 4. Guarantees to be provided by the foreign government.

According to the provisions of Article 11.3 of Law 12/2012 of 26 December, the guarantees to be provided by the foreign government shall be made by any of the following means:

a) Initial deposit.

b) Banking Aval.

c) Caution insurance.

The payment of an initial deposit that covers the potential risks of full or partial breach of the contract and all obligations arising therefrom shall be used. This initial deposit may be reduced over the life of the contract in the light of the reduction of the obligations assumed by the foreign government in the contract.

Article 5. Control measures and monitoring of the contract between governments.

1. With arrangements as set out in Article 4 of Royal Decree 33/2014 of 24 January, if the contract between governments establishes the creation of a joint control and monitoring body, the members of the Spanish side will be appointed by the Secretary of State for Defence.

2. The composition, functions, operation and decision-making arrangements shall be that laid down in the contract between governments.

3. In any case, on the part of the Ministry of Defence, a contract monitoring committee shall be set up to form part of:

a) The General Manager of Armament and Material.

b) The Director General of Economic Affairs.

(c) The Chief of the Joint Chiefs of Staff and the Chief of the Defense Staff, when the contract provides for the creation of a Program that affects the Defense Staff.

d) The Second Chief of Staff and the Head of the respective Logistic Support Command or Head when the contract provides for the creation of a Program that affects the Armies.

e) If applicable, the head of the Program Office.

4. In the light of the circumstances, the Secretary of State of Defense may decide to take part in both the Spanish representation and the Department of the Department.

Article 6. Fund situation accounts.

1. The recruitment and opening of the fund situation accounts, as referred to in Article 12 of Law 12/2012 of 26 December, and in Article 5 of Royal Decree 33/2014 of 24 January 2014, will be carried out by the General Management Subdirectorate Economic, corresponding to the Center for the Management of Payments Abroad (CEGEPEX) the administration of the same.

2. Each government contract shall establish its own funds status schedule, as well as the initial deposit payable to the foreign government. The document for requesting the corresponding credits will be the call for funds made by CEGEPEX, once the documentation has been received that accredits the reason and the amount of the same from the Subdirectorate General of Acquisitions of Armaments and Material.

3. The entry of the initial deposit shall be a necessary requirement for the commencement of the preparatory actions for the procurement with companies domiciled in national territory.

Article 7. Recruitment with Spanish companies in the defence sector.

1. Without prejudice to Article 8 of Royal Decree 33/2014 of 24 January 2014 in accordance with the provisions of Article 3.3.c) of Order DEF/244/2014 of 10 February 2014, which delegated powers to the contract, technical agreements and other onerous legal businesses in the field of the Ministry of Defense, the contracts that the Ministry of Defense holds with Spanish companies in the defense sector pursuant to the provisions of Title II of the Law 12/2012, of December 26, will be signed by the Subdirector General of Procurement of Armament and Material.

2. Such contracts shall be concluded on behalf and representation, and on behalf and at the risk of the foreign government.

3. The Ministry of Defense, in the terms agreed in the contract between governments, will reserve the right to resolve contracts with companies for reasons of public interest, with the compensation that in their case may correspond according to the provisions of the same. Such compensation shall be borne by the foreign government.

4. If the object of the contract involves a supply, the transfer of ownership will be made directly from the contractor to the foreign government.

Article 8. Extinction of the contract between governments.

In addition to the cause provided for in Article 3.3, contracts between governments will be concluded by some of the following:

a) For compliance, which will result in the final settlement of the contract and the closing of the open accounts.

The General Accounting Subdirectorate shall determine the amount of the costs incurred by the Ministry of Defence, which together with the price of the contract with the companies shall constitute the final price.

Once the Government of Spain and the companies of the expenses and costs incurred, the CEGEPEX will make the definitive closure of the accounts of the funds situation that the Ministry of Defense has opened or will give its conformity the closure of those opened by the foreign government.

b) By agreement between the parties, in which case the contract between governments will be established.

(c) For non-compliance with either party, in which case the contract between governments shall be established.

d) By resolution of the contract with the Spanish companies, the effects of which will be those established in the contract between governments.

Final disposition first. Dispositive enablement.

The Secretary of State of Defense is empowered to dictate how many provisions are necessary for the implementation of this ministerial order.

Final disposition second. Entry into force.

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

Madrid, March 16, 2015. -Minister of Defense Pedro Morenes Eulate.