PCAP and PPT (Spain) — the two binding tender documents

Two documents, two functions

The pliego de cláusulas administrativas particulares (PCAP) is the administrative and contractual rulebook for one specific contract. The pliego de prescripciones técnicas particulares (PPT) defines what is to be delivered and to what standard. Both are approved by the contracting body itself, both before the tender opens, and both are binding — art. 122.4 of Ley 9/2017 (LCSP) states that contracts conform to the content of the PCAP, whose clauses are an integral part of them.

Above them sit general pliegos, administrative (art. 121) and technical (art. 123). The word "particulares" in both names means "for this contract".

What goes in the PCAP

Article 122.2 requires the PCAP to include the solvency criteria and the award criteria; any social, labour and environmental considerations used as solvency criteria, award criteria or special conditions of performance; the pacts and conditions defining the parties' rights and obligations; the position on assignment of the contract; and the awardee's obligation to comply with the pay conditions of the applicable sectoral collective agreement. It may specify whether transfer of intellectual or industrial property rights will be required, and it must expressly state the future contractor's duty to observe data protection law.

Where performance requires the contractor to process personal data on the authority's behalf, the PCAP must additionally state the purpose of the transfer, the duty to submit to national and EU data protection rules, the obligation to declare before formalisation where the servers will sit and from where the associated services will be provided, the duty to report changes to that declaration, and the bidders' duty to name any subcontractor for those servers or services. Those obligations must be classified as essential, and their absence from the pliegos is a ground of full nullity under art. 39.2.h.

The PCAP may also set penalties for defective performance and may make particular features essential contractual obligations (art. 122.3). Approval sits with the contracting body, which may adopt model pliegos for categories of similar contracts (arts. 122.5 and 122.7).

What goes in the PPT

Article 124 requires the contracting body to approve, before or together with the authorisation of expenditure and always before the tender, the documents containing the technical prescriptions governing performance and defining its qualities and its social and environmental conditions.

The implementing regulation, Real Decreto 1098/2001, is more concrete: art. 68.1 requires the technical characteristics the goods or services must have, the price of each unit into which the budget is broken down with the estimated number of units, and where applicable the requirements and technical characteristics of variants. For works it requires the characteristics of the materials, testing regimes, rules for each work unit, safety and health measures, methods of measurement and valuation, and the rules and tests for acceptance.

Crucially, art. 68.3 of that regulation states that the PPT shall in no case contain declarations or clauses that must appear in the PCAP. A PPT that quietly introduces a solvency requirement, a scoring rule or a penalty is doing something the regulation forbids.

The rule that matters most: both are frozen

Articles 122.1 and 124 use the same formula for each document. Approval must come before or together with the authorisation of expenditure and always before the tender is launched. After that, both may be modified only for a material, factual or arithmetical error. Any other change requires retroacción de actuaciones — the procedure is rolled back.

That is why a Spanish buyer answers awkward questions with clarifications rather than amendments, and why a substantive change late in a procedure is worth examining: if the pliego really changed, the steps that followed it should not have stood.

What to do about it

Read the PCAP before the PPT. The PCAP tells you whether you can qualify, how you will be scored, what you are agreeing to, and what will be treated as an essential obligation you can be terminated for. The PPT only tells you what to build. Bidders who reverse that order routinely produce technically excellent offers that fail on a solvency threshold or lose on a weighting they never modelled.

Check where each requirement lives. A technical-sounding condition placed in the PPT that is really a qualification or scoring rule is contrary to art. 68.3 RGLCAP and is normally challengeable as a clause of the pliegos.

Then watch the deadline, because it is short and it is a trap. Under art. 50.1.b, an appeal against the content of the pliegos and other contractual documents must be lodged within 15 working days counted from the day after the tender notice is published in the perfil de contratante, provided the notice says how to access them. And as a general rule the appeal will not be admitted if the appellant had already submitted an offer or a request to participate before lodging it, except on grounds of full nullity. You cannot bid first and object later. Decide on the pliegos in the first fortnight.

One regional caveat: Constitutional Court judgment 68/2021 held that the first paragraph of art. 122.2 does not conform to the constitutional order of competences except for two specified passages, so the detailed content of the PCAP can be regulated differently by an autonomous community. Read the regional rules where the buyer is regional.

Related terms

• Perfil del contratante (Spain) — the contracting authority profile
• Recurso especial en materia de contratación (Spain)
• Clasificación empresarial (Spain) — contractor classification
• PLACSP — Plataforma de Contratación del Sector Público (Spain)

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