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The European Commission's services have brought before the Spanish authorities the need for a uniform interpretation throughout the European Union and consistent with the public procurement and public procurement directives. with the case-law of the Court of Justice of the European Union of the regime contained within the transitional provision seventh, rule d) of the recast of the Law on Public Sector Contracts, approved by the Royal Legislative Decree 3/2011, of 14 November.
The Advisory Board of Administrative Contracting, in exercise of the jurisdiction conferred on it by Article 2 (4) of Royal Decree 30/1991, of 18 January, which establishes its legal and functional regime, is entitled to "expose the contracting authorities to the recommendations and instructions that they consider relevant in the light of the competence attributed to them".
The Advisory Board of Administrative Contracting has considered it appropriate to adopt a recommendation on the interpretation of this legal regime which, due to its content and importance, should be published in the " Bulletin Officer of the State ", in his virtue, resolute:
The publication in the "Official Gazette of the State" of the Recommendation of 1 March 2012 of the Advisory Board of Administrative Contracting to the contracting authorities on the interpretation of the regime's content Transitional provision seventh, rule (d) of the recast text of the Public Sector Contracts Act.
Madrid, March 28, 2012. -Director General of State Heritage, Carlos San Basilio Pardo.
RECOMMENDATION OF 1 MARCH 2012 FROM THE ADVISORY BOARD OF ADMINISTRATIVE CONTRACTING TO THE CONTRACTING AUTHORITIES ON THE INTERPRETATION OF THE REGIME CONTAINED IN THE TRANSITIONAL PROVISION SEVENTH, RULE D) OF THE recast OF THE LAW ON PUBLIC SECTOR CONTRACTS
Background
The Services of the European Commission, Directorate-General for Internal Market and Services, have addressed to the Spanish authorities the need to clarify that in the absence of an independent body in a Autonomous community or convention attributing the knowledge of the special resource to the Central Administrative Court of Contractual Resources, the resources against the acts of adjudication that are brought before the courts of the jurisdiction administrative disputes, have suspensory character of the conclusion of the contract until such time jurisdiction has been pronounced on the merits or on the provisional measures.
Recommendation
For the above, the Advisory Board of Administrative Contracting recommends to the contracting authorities of the Public Sector that the interpretation to be made of the norm d) of the seventh transitional provision of the Text Recast of the Law on Public Sector Contracts, approved by Royal Legislative Decree 3/2011 of 14 November, is carried out in the following terms:
1. The territorial scope of this precept is that of the Autonomous Communities and the existing local entities within those. The correct interpretation of this rule, in accordance with the provisions of Directive 2007 /66/EC, is to understand that the interposition of the appeal provided for in this provision involves the automatic suspension of the award where it is the appeal, which, in the case of the interposition of the administrative-administrative appeal, is maintained until the body of the administrative-administrative jurisdiction decides on it.
In the event that the Autonomous Communities do not have established the independent body that they must create or have not signed an agreement with the Central Administrative Court of Contractual Resources, if the individuals interpose In the case of the contracting authority, its interposition involves the automatic suspension of the award where the use is made. Appeals against the acts of adjudication brought before the courts of the administrative legal jurisdiction are suspensory of the conclusion of the contract until such jurisdiction has been pronounced on the merits or on the provisional measures.
2. The interposition of a special appeal in the field of procurement involves the automatic suspension of the award, and once the appeal is settled, the decision of the same shall not be enforceable until it is signed for the period of two months. for the interposition of the administrative-administrative appeal, or, in the case of an interposition of such an appeal, until the body of the jurisdiction decides on the requested suspension.
In its virtue, suspended the effectiveness of the act of adjudication, and until not lifted, the subsequent acts to the award, including the formalization of the contract, will not be able to be executed. In this sense, article 140 of Law 30/2007, of October 30, of Public Sector Contracts, as amended by Law 34/2010, the wording of which has been incorporated into Article 156 of the Recast Text of the Law on Public Sector Contracts time limits for the formalisation of the contract taking into account the possibility of suspension of the contract, so that if the award is suspended, it is not possible to require the successful tenderer to formalise the contract.
