Judgment of the Supreme Court, October 1, 2025, (Roj: STS 4310/2025 – ECLI:ES:TS:2025:4310), Spain
Article(s) in Directive 2014/24/EU: Arts. 56, 58, 63 and 71
Topic: Selection criteria, Criteria for qualitative selection; Reliance on the capacities of other entities; Subcontracting
Member State: ES
Court/rev. board: Supreme Court
1. IMPLEMENTATION / RELEVANT NATIONAL LEGISLATION
Articles 56, 58, 63, and 71 of Directive 2014/24 have been duly transposed into the Spanish legal order via Articles 65 (capacity to act/eligibility), 74 and 75 (economic and technical standing), and 215 (subcontracting) of Law 9/2017 on Public Sector Contracts.
Indeed, the selected judgment provides several observations analyzing the applicable regulatory framework, reproducing various provisions from Law 9/2017: Articles 65 (capacity/eligibility), 74 and 75 (standing), and 215 (subcontracting); from Directive 2014/24, Arts. 56, 58, and 63; as well as from Law 5/2014 on Private Security, Arts. 5, 9, 10, 17, 18, and 38; and from Royal Decree 2364/1994, of 9 December, which approves the Private Security Regulations, Art. 2.
2. FACTS
The judgment concerns the award of a contract for “Security and Surveillance Services for the Autonomous Body of Museums and Centres of the Island Council of Tenerife” (Organismo Autónomo de Museos y Centros del Cabildo Insular de Tenerife). At the time of tendering, the successful bidder possessed the professional authorization required to perform only a portion of the activities covered by the contract, specifically, surveillance and protection activities. Regarding the remaining activities within the scope of the contract, the aforementioned company explicitly stated in its submitted Single Procurement Document (ESPD) its intention to subcontract them. Specifically, it intended to subcontract both the installation and maintenance of security devices and the operation of the Central Monitoring Station (CMS) to respective security firms that were duly authorized to perform such tasks (the successful bidder provided the supporting documentation for these circumstances during the procedure).
The award of the contract to this company under these circumstances was appealed before the Administrative Tribunal of Public Contracts of the Canary Islands (Tribunal Administrativo de Contratos Públicos de Canarias -TACPC-), which dismissed the special appeal, upholding the award. The TACPC’s decision was subsequently challenged before the High Court of Justice of the Canary Islands (Tribunal Superior de Justicia de Canarias -TSJC-), which upheld the claim and annulled the contract award, finding that the successful bidder should have been professionally authorized for all services comprised in the contract, including those it intended to subcontract.
An appeal on points of law (recurso de casación) was filed against the TSJC judgment before the Supreme Court, which was resolved by the judgment under review.
3. JUDGMENT
The controversy centers on identifying the nature and scope of the professional authorization requirements to be met by the successful bidder of a public contract. The Spanish Supreme Court holds:
The reliance on the capacities of other entities to supplement a bidder’s qualifications may only be exercised with respect to the resources or means available for contract performance, and not regarding the contractor’s own legal standing to lawfully carry out the activities constituting the subject matter of the contract.
Furthermore, if it is impermissible to rely on the “capacities” of third parties in the case of business or professional authorizations, a bidder who does not meet such a condition of eligibility cannot be awarded the contract. This holds true even if the bidder proposes to subcontract entities that do possess the requisite authorization to provide the service for which the bidder is unauthorized; such subcontracting cannot serve as a means of integrating or supplementing their eligibility.
From the perspective of a teleological interpretation of these provisions, it must be noted that, although both the removal of subcontracting percentage limits and the mechanism for relying on external resources have the explicit purpose of increasing competitive tension, such a purpose cannot be taken to the extreme of allowing an entity to contract with the Public Administration while lacking the eligibility conditions that legally disqualify it from performing the activities subject to the contract (such as lacking legal capacity, being subject to a debarment/prohibition from contracting, or, as is the case in these proceedings, lacking professional or business authorization). Under the pretext of external integration, this lack of eligibility could transform the contractor into a mere intermediary whose role is limited to subcontracting the contract’s core obligations (recalling that the law has abolished percentage limits on subcontracting).
Admittedly, many tender specifications (pliegos) impose percentage limits on subcontracting or specify that it shall be “partial” (as in the present case), without defining what that entails. However, subcontracting is only one possible means of linking a contractor with a third party to supplement its “capacities” (in the words of the Directive) with external resources. Therefore, permitting the integration of external means in cases of eligibility conditions affecting the contractor’s capacity to act validly in legal transactions—specifically regarding the activities subject to the contract, such as professional authorization or statutory capacity—could entirely decouple the contractor from the subject matter of the contract, turning the contractor, as noted, into a mere intermediary.
Consequently, when the lack of professional or business authorization affects, in whole or in part, the essential or defining core of the services subject to the contract, the contract cannot be awarded to a bidder suffering from such a deficiency, even if they intend to subcontract the portion for which they lack the required eligibility.
Only certain ancillary or complementary activities, which do not belong to said essential core, could remain exempt, pursuant to the principle of proportionality and because, in such instances, the aforementioned disconnection between the subject matter of the contract and the contractor’s legal eligibility is not evident.
This conclusion is not hindered by the fact that private security legislation, when referring to the authorizations necessary to lawfully perform security activities, refers to the “provider” rather than the “contractor.” The eligibility requirements for contracting with the public sector are governed by public procurement regulations, which must be interpreted in accordance with the foregoing.
Ultimately, the Supreme Court declares that there are no grounds for the appeal on points of law (recurso de casación).
It follows from this judgment that, within the framework of awarding a private security services contract subject to harmonized regulation (above EU thresholds) , when the main contractor lacks the legally required professional authorization to perform all or any of the services constituting the subject matter of the administrative contract, it is not possible to remedy such a lack of eligibility by resorting to the subcontracting of security services that are defined within the contract’s scope and are not merely ancillary, even if the subcontractor possesses the necessary authorization for that purpose.
This judgment runs contrary to the positions previously held by several administrative contract tribunals, such as those of the Canary Islands and the Regional Government of Andalusia.
