Decision n. 145/2018, 9 May 2018, Administrative Tribunal of Public Procurement of the Autonomous Community of Madrid (TACPM)
Article(s) in Directive 2014/24/EU: 23
Member State: SP
Court/rev. board: Administrative Tribunal of Public Procurement of the Autonomous Community of Madrid
1. IMPLEMENTATION / RELEVANT NATIONAL LEGISLATION
Art. 23 was implemented by Art. 2(4) of Law 9/2017, 8th November, on Public Sector Contracts, that transposes the European Parliament and the Council Directives 2014/23/EU and 2014/24/EU, of 26 February 2014, into the Spanish legal system (hereinafter, LCSP). This Article is referred to the scope of application of LCSP. It establishes that the Law applies -in the form and terms foreseen therein- to all pecuniary contracts celebrated by the different entities of the public sector and to all subsidised contracts above EU thresholds celebrated by other entities with the consideration of contracting authorities.
Paragraph 4 refers to CPV indicating that for the purpose of identifying the object of all contracts subject to LCSP, it will be used the “Common Vocabulary of Public Contracts”, approved by Regulation (EC) No. 2195/2002 of the European Parliament and of the Council of 5 November 2002, which approves the Common Vocabulary of Public Contracts (CPV), or community regulations that replace it.
In March 2018 was publisehd the call for tenders for a contract for the supply of disposable medical equipment for the University Hospital of La Princesa, in Madrid.
In the tender documents it was indicated that it was a contract divided into lots, whose Estimated Contract Value was 890,441.43 euros. the CPV assigned to the contract by the contracting authority was 33140000-3, corresponding to “Medical consumables”.
On April 27, 2018 the company “SURGYCAL, S.A.” filed a special appeal on contracting with the TACPM against the contract specifications governing the aforementioned tender procedure. The appeal was filed after the deadline for submission of offers without the said enterprise presenting any offer.
The appellant intended that the TARCM declare the annulment of the call for not having entered in the specifications a correct CPV code regarding lot 6 of the contract.
For its part, the contracting authority states that:
a) the first two digits of the CPV chosen by the University Hospital of the Princess, that is, 33, are defined according to the “Common Vocabulary of Public Contracts”, such as medical, pharmaceutical and hygiene equipment and articles;
b) that the 14 digits of the CPV correspond to the fungible material, considering it the most appropriate due to the variety of products described in the specifications.
So, it concluded that the CPV included in the tender documents was correct.
Much can be learned about CPVs from this decision from the TACPM.
First, it reiterates that contracting authorities are responsible for defining their needs in the documentation that must be included in the contract files, and for deciding how best to provide the same.
On the other hand, it reviews the aim pursued by EU law when establishing the requirement for a CPV. It reiterates that Regulation EC 2195/2002 of the European Parliament and of the Council of 5 November 2002, amended by Regulation (EC) No 213/2008, approving the Common procurement vocabulary, establishes a single classification system applicable to public procurement, in order to standardise the references used by contracting authorities and contracting entities to describe the subject of their contracts. This assignment has both a descriptive and a classificatory purpose, bearing in mind that the Guide to the Common Procurement Vocabulary —which despite having no official value, is nonetheless indicative in nature— states in section 6.2 thereof that: “The contracting entities should look for the code that responds to their needs as accurately as possible. It is possible, of course, to use more than one code in the standardised forms intended for the publication of the notices for public contracts (…) “.
Moreover, the TACPM underscores the need for precision in determining the applicable CPV codes in order to describe the subject of a contract, as this is directly related to the principle of transparency, one of the principal objectives of public procurement rules, since any substantial defect in the publication of the notice is tantamount the absence of any publication.
It explains that the numerical code that constitutes the CPV comprises 8 digits and is subdivided into: divisions, identified by the first two digits of the code; groups, identified by the first three digits of the code; classes, identified by the first four digits of the code; categories, identified by the first five digits of the code. A ninth digit serves as a check digit for the preceding ones.
It is explained that according to the information system for European public procurement (SIMAP), “Contracting authorities should try to find the code that suits their envisaged purchase as accurately as possible. Although in some occasions contracting authorities may find themselves having to select several codes, it is important that they select a single code for the title of the contract notice. Should the level of accuracy of the CPV be insufficient, then contracting authorities should refer to the division, group, class or category that better describes their intended purchase – a more general code that can be recognised because it has more zeros”. This does not mean that more codes cannot be used, since it refers only to the title of the notice, as is clear from the Guide to the Common Procurement Vocabulary, which, despite having no official value, can be considered interpretive purposes, stating that “Of course, more than one code may be used in the standard forms for the publication of public procurement notices (see the eNotices website). This will be necessary, for example, if there is no specific code that is appropriate. However, the first one will be considered the title. Therefore, it may be a little more general (with more zeros at the end) than the others, for instance if no accurate code is suitable.”
In this case, the TACPM considers that the CPV code selected by the contracting authority responds to the general purpose of the contract, -sundry disposable or fungible sanitary material, such as disposable gowns (lot 1), disposable jackets (lot 2), drip systems (lot 3), portable respirator tubing (lot 4), bifurcated bio-security connectors (lot 5) and surface kits (lot 6) -, so that the code selected is suitable at the title level to identify the overall subject of the contract.
However, it finds that it should go on to consider the lots into which the contract is divided, since each lot constitutes an independent functional unit or object and, as such, this object must be determined, as far as possible, through of CPV codes attributed to each lot in order to ensure compliance, not only formal but also material, in the sense of publicity. In this regard, Annex III of the LCSP, regulating the information that should appear in tender notices, states that they should include “CPV codes when the concession is divided into lots, this information will be provided for each lot.”
The TACPM considers that, in the event of there being several lots with different subjects in a contract in which the general CPV code or at title level does not define each and every one precisely, if there is a specific CPV code, this should be included with a view to ensuring maximum possible concurrence.
In the case in question, the general CPV 33140000-3 could have been specified for each batch if there had been a specific code corresponding to the products that are the subject of each batch. However, since an appeal had been lodged against Lot 6, only the CPV applicable to the surface kit, which includes various disinfection elements, should be taken into account.
In the list of codes, only two codes pertaining to disinfectant products appear, 33631600-8 (Antiseptics and disinfectants) and 24455000-8 (Disinfectants), the latter appearing in the division corresponding to agricultural products, owing to which it is not applicable.
Regarding the former, in the opinion of the TACPM, the description thereof is not in itself determinant of the product to be supplied, since the concept of antiseptic or disinfectant may refer to a product for both therapeutic and cleansing use; therefore, as there is no specific CPV which allows the subject of lot 6 to be identified precisely, the appropriate course of action would have been to use the two codes: the generic one for consumable products and the specific one for disinfectants.
By virtue of the foregoing, the TACPM upholds the appeal filed and annuls the tender for the contract with regard to lot 6 of the contract.