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Title II of law 12/2012, of 26 December, urgent measures of liberalization of trade and certain services, concerning support for the export of defence by the Ministry of defence, adds a new mechanism of support to export to the existing ones in the Spanish legal system, developing the capacities of the Ministry of defence management of defence equipment programmes destined for export.
This law enables to the Ministry of Defense, in compliance of them terms established in a contract held between the Government of Spain and other Government foreign, for carry to out them performances of recruitment in name and representation of said Government foreign, supervision, support logistics and transfer of technology necessary for the delivery to the same of a given material of Defense , in terms that are contained in article 8 of the aforementioned law.
Title II of the Act 12/2012, on December 26, has been developed by Royal Decree 33/2014, of 24 January.
For its part, the Royal Decree 454/2012, 5 March, which develops the basic organizational structure of the Ministry of defence, modified by Royal Decree 524/2014, of 20 June, assigns to the Subdirectorate-General for international relations of the General direction of armament and materiel, among others, the function «promote institutional support to the internationalisation of the Spanish defence industry «, coordinate the promotion international of the alienation of goods furniture and products of defence and, in coordination with the address General of political of Defense, direct them performances of them added and advisors of Defense».
The process of delivery of defence equipment by means of a contract between the Government of Spain and other foreign Government is complex and lengthy in time, so it is necessary to address the mechanisms of address, follow-up, implementation and control of programs which, if any, should be established for these activities.
Contracts with Spanish companies in the defence sector result from the contract between Governments is excluded both of Directive 2009/81/EC of the European Parliament and of the Council of 13 July 2009 on the coordination of procedures for the award of certain works contracts, supply and services by the entities or contracting authorities in the fields of defence and security , as of it law 24 / 2011, of 1 of August, of contracts of the sector public in them areas of the defense and of it security, by what, without prejudice of what is set in the contract signed between the Government of Spain and another Government foreign and in all it not planned in the title II of the law 12 / 2012 December 26, concerning urgent measures for liberalization of trade and certain services, contracts with these companies will be governed by the consolidated text of the law of contracts in the Public Sector, approved by Royal Decree legislative 3/2011, from 14 November.
During his processing the project has been informed by the Board Advisory's hiring administrative.
Finally, the available final third of the Real Decree 33 / 2014, of 24 of January, empowers to the Minister of Defense, in the field of its competition, to dictate standards of development and application of said real Decree.
In his virtue, I have: article 1. Object.
This ministerial order aims to develop the Real Decree 33/2014, of 24 January, which develops the title II of law 12/2012, of 26 December, urgent measures to liberalize trade and certain services, establishing the rules for the conclusion of a contract between the Government of Spain and other foreign Government , hereinafter contract between Governments.
Article 2. Actions conducive to celebrate a contract between Governments.
1. pursuant to the provisions of article 2 of the Royal Decree 33/2014, of 24 January, actions leading to conclude contracts between Governments, provided for in article 6 of law 12/2012, on December 26, will be the responsibility of the Secretary of State for defence.
2 in the exercise of this jurisdiction, the Secretary of State for defense may carry out the following actions: to) necessary preliminary contacts with the foreign Government, at levels of dialogue suitable at any time, pursuant to the powers conferred to the General Directorate of armament and materiel in the Real Decree 454/2012, 5 March , by which it develops the structure organic basic of the Ministry of Defense, modified by the Real Decree 524 / 2014, of 20 of June. In coordination with the General direction of Defense policy, will lead the performance of aggregates and leading defense advisers to ensure the success of the negotiations for the signing of a contract, Government-to-Government.
(b) analysis of the application initial that make the Government overseas, from the point of view technical, financial and of management of risks. You will be evaluated especially the ability of the public Spanish Administration to deal with the commitments arising out of the contract, as well as the solvency of the potential companies involved.
Is will assess the existence of agreements international force with said Government foreign and them relations of both countries in the areas of armament and material.
(c) order the start of a record contract with the foreign Government. The file will have the mandatory reports the general legal counsel of Defense and the General intervention of the defense.
(d) lay the Foundation for the signing of a contract that will be proposed to the Government.
(e) define the requirements of the supply and the service to offer, proposing the solution operational or functional more adequate to the need posed.
f) estimate the costs to be incurred by the Ministry of defence that, if necessary, be revised to avoid implying cost or economic benefit to the Department.
(g) in your case, request and evaluate them offers binding to the companies concerned.
(h) draw up a schedule of payments of the future contract between Governments which shall ensure that, at all times, the available balance in the account of funds situation will allow make against: 1 the compensation of all kinds to take, including the costs associated with a possible resolution of the contract for reasons not attributable to business and other risks identified.
2. payments to companies in the next six months.
3rd the advance payment of costs to incur by the Ministry of defence, in the next three months.
(i) prepare the draft contract between Governments, ensuring, where appropriate, the conformity of the company and all agencies of the Ministry of defence involved in its subsequent execution.
Article 3. Content of the contract with the foreign Government.
1 the contracts between Governments, in addition to the ends which can be collected pursuant to article 3 of the Royal Decree 33/2014, of 24 January, may include the following: to) Statute of staff exchanged between the two Governments.
(b) system of responsibilities of both Governments.
2 in any case the clauses of the contract shall collect, in addition to the ends set forth in article 3(2) of the Royal Decree 33/2014, of 24 January, the following: a) reimbursement of expenses to the Ministry of defence.
(b) causes of termination of the agreement.
3. pursuant to the provisions of article 3.3 of the Real Decree 33/2014, of 24 January, in contracts between Governments can be stated that the Government of Spain reserves the right of full or partial termination of the agreement between Governments for reasons of public interest. The causes of public interest and the effects of termination of the agreement will be defined in the contractual document.
Article 4. Guarantees to be provided by the foreign Government.
Pursuant to the provisions of article 11.3 of the law 12/2012, on December 26, the guarantees to be provided by the foreign Government will be carried out by any of the following means: to) initial deposit.
(b) bank guarantee.
(c) surety insurance.
The payment of a deposit that covers the potential risks of total or partial breach of contract and all obligations arising from the same will preferably be used. This deposit may be reduced throughout the life of the contract depending on how to reduce the obligations assumed by the foreign Government in it.
Article 5. Measures of control and monitoring of the contract between Governments.
1. with the arrangements set out in article 4 of the Royal Decree 33/2014, of 24 January, if the contract between Governments established the creation of a College of control and monitoring, corresponding to the Spanish party members shall appoint is by the Secretary of State for defence.
2. the composition, functions, operation and decision-making regime will be that stated in the contract between Governments.
3 in any case, by the Ministry of defence, shall constitute a Committee to follow up the contract that will be part of: to) the Director-General of armament and materiel.
(b) the Director General of matters economic.
(c) the Chief of the State greater joint and the Chief of programs of the State more of the defense, when the contract provides for the creation of a program that affect to the State greater of the defense.
(d) the second Chief of the State greater and the Chief of the command or headquarters of support logistic respective when the contract provides for the creation of a program that affect to them armies.
(e) where appropriate, the head of the Office of program.
4. pursuant to the attendant circumstances, the Secretary of State for defence may decide to form both the Spanish representation of the Commissioner of the Department.
Article 6. Accounts of situation of funds.
1. the procurement and opening of accounts of funds situation, referred to in article 12 of law 12/2012, on December 26, and article 5 of Royal Decree 33/2014, of 24 January, will be held by the General Sub-Directorate of economic management, corresponding to the center of management of payments abroad (CEGEPEX) the administration of the same.
2. each contract between Governments will establish its own calendar of situation of funds, as well as the deposit initial payable to the Government overseas. He document for request to this them fertilizers corresponding will be it called of funds effected by the CEGEPEX, a time received the documentation that accredits the reason and the amount of the same from the Subdirectorate General of acquisitions of armament and Material.
3. the income of the deposit initial will be requirement necessary for the home of the performances preparatory of the contracting with them companies domiciled in territory national.
Article 7. Contracts with Spanish companies in the defence sector.
1 without prejudice to the provisions of article 8 of Royal Decree 33/2014, of 24 January, in accordance with the provisions of article 3.3. c) of the order DEF/244/2014, on 10 February, by which powers are delegated in contracts, technical agreements and other onerous legal businesses in the field of the Ministry of defence , them contracts that celebrate the Ministry of Defense with companies Spanish of the sector of the defense in application of it arranged in the title II of the law 12 / 2012, of 26 of December, will be signed by the Deputy Director General of acquisitions of armament and Material.
2. such contracts will be held on behalf and for account and risk of the foreign Government.
3. the Ministry of defence, under the terms agreed in the contract between Governments, reserves the right to settle contracts with companies for reasons of public interest, compensation where appropriate may be applicable in the same manner set out. Such compensation will run to charge from the Government overseas.
4. If the object of the contract implies a supply, the transfer of ownership will take place directly from the contractor to the foreign Government.
Article 8. Extinction of the contract between Governments.
Besides the case provided for in article 3(3), the contracts between Governments will be completed by any of the following reasons: to) enforce, that will lead to the final settlement of the contract and the closing of the accounts.
The Sub-Directorate General of accounting will determine the amount of the costs incurred by the Ministry of defense that along with the price of the contract with them companies shall constitute the price end.
Once compensated the Government of Spain and the companies of the expenses and costs incurred, the CEGEPEX will be the definitive closure of the accounts of funds situation that the Ministry of defence has opened or will their conformity to the closure of those opened by the foreign Government.
(b) by agreement between the parties, in which case is will be to it established in the contract between Governments.
(c) for breach of any of the two parties, in which case it will be provisions in the contract between Governments.
(d) by a resolution of the contract with the Spanish companies, whose effects will be those set forth in the contract between Governments.
Available end first. Enabling operative.
Is empowers to the Secretary of State of Defense to dictate how many provisions are necessary for the application of this order ministerial.
Second final provision. Entry in force.
This ministerial order shall enter into force the day following its publication in the "Official Gazette".
Madrid, March 16, 2015.-the Minister of Defense, Pedro Morenés Eulate.
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