Decision nº 78/2018, 26 January 2018, Central Administrative Tribunal of Contractual Appeals (TACRC)
Article(s) in Directive 2014/24/EU: 23
Member State: SP
Court/rev. board: Central Administrative Tribunal of Contractual Appeals
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 November 2017, a tender notice was published in the OJEU, in the Spanish Official State Gazette [BOE], and in the correspondent contractor´s profile regarding a service contract for the transport of users from the La Unión de Salinas Integration Support Centre, dependent on the Social Services and Rights Department of the Principality of Asturias.
As basic characteristics of the contract, the contract documents established that it would have a duration of 24 months, an Estimated Contract Value (excluding VAT) of 948,860 euros, and a tender budget of 474,430 euros; that the award would be conducted using the open procedure; that the award criterion would be the price; and that considering the services required, the contract was included in category 20 of service contracts (supporting and auxiliary transport services ) corresponding to CPV 60140000 (unscheduled passenger transport services).
On 11 December 2017, a company (TRANSPORTES RECOLLO, S.A.) filed an appeal against the contract specifications before the TACRC.
For the relevant purposes, in it its appeal, the appellant invokes an erroneous assignment of the CPV to the contract. It understood that this defect should result in the annulment of the award procedure.
The appellant explained that by attributing the CPV 60140000 to the business, the contracting authority had considered the contract as “unscheduled” transport. In contrast, it considered that the contracting authority should have assigned the CPV relating to “other urban and suburban road transport services”, since, considering the services that are the subject of the contract, it argued that the transport to which it referred was regular.
In the report issued within the context of the appeal, the contracting authority implicitly admitted that the transport which is the subject of the contract should be included in the category of “regular public transport for special use”. That is, it admitted that the initial coding of the contract had been erroneous and that, on those grounds, it had already proceeded to modify and publish the correction of errors.
Thus, in the file it appeared that the coding of the CPV code had been changed, from the initial 60140000-1, to the number 60130000-8 “Special passenger transport services by road ”.
The TACRC alludes to the fact that a contracting authority may be mistaken in the determination of its CPV coding, acknowledging that, in certain cases, the inclusion of the service into a determined category of this classification is not so simple, not even when referring to the regulatory sources.
Nonetheless, it considers this error in the determination of the CPV to be a remediable defect that cannot have annulling consequences for the tender documents. Particularly in a case such as this contract, in which the contracting authority has already made the correction in the tender document, it has published the same, and in which the change in the CPV does not affect the economic, technical or professional solvency required of the economic operators participating in the award procedure.
Accordingly, the TACRC dismisses this appeal.