On November 9, the new BOE was published Law 9/2017, of November 8, on public sector contracts (LCSP). This Law comes 
after a long parliamentary procedure and having far exceeded the term of transposition of the third package of Community directives on public procurement ended on April 18, 2016.
The LCSP transposes into the Spanish legal system, two of the three hiring directives: the Directive 2014/23 / EU on the award of concession contracts I la Directive 2014/24 / EU on public procurement.
The LCSP will come into force in general on March 9, 2018 (DF 16ª), expressly repealing the revised text of the Law on public sector contracts, approved by Royal Legislative Decree 3/2011, of November 14, as well as those provisions of equal or lower rank that are in opposition to that determined by the new LCSP. However, the provisions concerning the consultative bodies (arts. 328 to 334) and the modification of the Value Added Tax Act (DF 10th), have been in force since November 10, 2017.
What introduces the new LCSP? Some of the most outstanding new features are:
- Lowering the thresholds for minor contracts (art. 118): those of works become less when the estimated value is less than 40.000 euros and those of supplies and services when they have an estimated value less than 15.000 euros.
- Service concession contract: The service concession contract is created which replaces the public services management contract (arts. 282 to 295 and DA 34ª). Therefore, a double modality of the concession contract is established: works and services.
- Operational risk transfer: This new concept is included to differentiate a service concession contract from a service contract.
- Simplified open procedure (art. 159): This new procedure is created for the award of works, supplies and services contracts that meet certain requirements. A modality of summary contracting is included.
- Partnership procedure for innovation (arts. 177 to 182): this new procedure is created that aims at the development of innovative products, services or works and the subsequent purchase of the resulting supply, works or services, provided that they correspond to the levels of performance and costs agreed between the the contracting body and the participants.
- New regulation of the mixed contract (art. 18): the rules of application are different depending on whether it is the preparation and adjudication phase or the effects and extinction.
- Stricter rules for abnormally low bids (art. 149): The contracting bodies will reject the offers if they find that they are abnormally low because they do not comply with the applicable obligations in environmental, social or labor matters.
- Electronic contracting obligation (DA 15th and 16th).
- Extension of the objective scope of the special contracting resource (art. 44): may be filed against all contracts in the field of works of more than 3.000.000 euros and in supply and services of more than 100.000 euros.
- Automatic suspension effects of the special resource in the matter of contracting (Art. 53).
- Composition of the contracting tables (art. 326): in general, the representative public positions, nor the eventual staff, may not be part of the months or issue valuation reports of the tenders. They can only be made up of career officials, and exceptionally if they are not, by interim civil servants. At the local level, the tables themselves may be composed of elected members, but in no case can they represent more than a third of the composition of the table (DA 2nd). Nor will the staff who participated in the drafting of the technical documentation of the contract with the exceptions of DA 2ª be allowed to be part of the table.
- New regulation of the registration of contracts in the public sector (art 346): all contracts awarded by public sector entities must be registered, with the mandatory submission of data relating to all contracts concluded for an amount equal to or greater than 5.000 euros.
- New regulation of the contractor's profile (art 347): A more thorough regulation of the content of the profile is established, giving it a major role as an advertising instrument for the various events and stages of the processing of contracts for each entity.
- Local contracting resources bodies (art. 46): Municipalities with large populations and provincial councils may create their own bodies of contract resources.
- Division into lots as a rule (art. 99): the division of the contract object into batches must be the general rule, so that the decision not to divide into batches must be justified in the contract file. The aim is to facilitate the participation of SMEs in the award procedures.
- Disappearance of the internal instructions for the contracting authorities not Public Administration (arts. 317 and 318): they disappear for both the contracts subject to harmonized regulation, as for the rest, so that these subjects must follow the same procedures as the LCSP for public administrations.
- Prohibitions on contracting (art. 71 to 73): the cases of prohibition to contract are increased, the competition is modified, the procedure is modified and the effects of the declaration of prohibition on contract are modified.
- Price review and adaptation to de-indexation (art. 103): The regulation of the price review is adapted to Law 2/2015, of March 30, on de-indexation, in the sense that the price review cannot be performed on the basis of a general index, but applying specific indexes that will operate through formulas that reflect the cost components of the contracted benefit.
- Preliminary market consultation (art. 115): introduces the possibility that the contracting bodies can carry out market research and direct consultations with the economic operators in order to properly prepare the tender and inform the economic operators of the plans and requirements that they will require to attend the procedure .
- Independent office for regulation and supervision of procurement (art. 332): The purpose is to ensure the correct application of the legislation and to promote concurrence and to combat illegality in relation to public procurement.
- Checking payments to subcontractors (art. 217): It establishes the obligation of the contracting body to check the strict compliance with the payments that the contractor makes to the subcontractor.
- Extension of the use of the responsible declaration: In order to simplify and reduce administrative burdens, the cases in which the responsible declaration can be used are expanded, in accordance with the only European contracting document approved by the European Commission.
What disappears from the new LCSP? Some of the issues that disappear from the new LCSP regulation are, without exhaustive, the following:
- Utility management contract.
- Public-private partnership agreement, its functionality is replaced by the modality of the concession contract.
- Procedure negotiated without advertising due to the amount.
- Disappearance of the indirect management modes of public services, except for the direct award of a contract for the concession of works or for the provision of services to a mixed economy society.
- The special recourse in the matter of contracting is no longer linked to contracts subject to harmonized regulation.
- Issue of invalidity, although their causes can be asserted through the special resource in the matter of contracting.
