Recurso especial v javnem naročanju (Španija)

What it is

The recurso especial en materia de contratación is an administrative appeal, heard by a body independent of the contracting authority, against decisions taken in a procurement procedure. Article 44.7 of Ley 9/2017 (LCSP) makes it optional and free; art. 44.5 makes it exclusive, so ordinary administrative appeals do not lie against an act open to this route.

In the state public sector the competent body is the Tribunal Administrativo Central de Recursos Contractuales (TACRC), described by art. 45.1 as acting with full functional independence, with members appointed for a single non-renewable six-year term. Autonomous communities must create their own independent body or transfer competence to the TACRC by agreement (arts. 46.1 and 46.2); large municipalities and provincial councils may create their own (art. 46.4).

Which contracts, and which acts

The remedy is available only above certain values, and those values are not the harmonised-regulation thresholds. Under art. 44.1 it covers contracts that public administrations and other contracting authorities intend to conclude, where:

• works contracts have an estimated value above €3,000,000, and supply and service contracts above €100,000;
• framework agreements and dynamic purchasing systems for such contracts, and contracts based on them;
• works or services concessions with an estimated value above €3,000,000.

Subsidised contracts under art. 23 and in-house assignments above the services figure are also covered. The appeal is not available in emergency procedures (art. 44.4).

Article 44.2 lists the challengeable acts: tender notices, the pliegos and contractual documents setting the governing conditions; procedural acts that decide directly or indirectly on the award, make it impossible to continue, or cause defencelessness or irreparable harm — always including admission or exclusion of candidates and offers, including exclusion as abnormally low; award decisions; modifications made in breach of arts. 204 and 205; the formalisation of non-compliant in-house assignments; and decisions to take back a concession.

Who may appeal

Article 48 gives standing to any natural or legal person whose rights or legitimate interests, individual or collective, have been harmed or may be affected, directly or indirectly, by the decision. Trade unions have standing where the decision implies a breach of social or labour obligations towards workers during performance, and the representative sectoral employers' organisation is always deemed to have standing.

The clock, and the trap

The appeal must be lodged within 15 working days (art. 50.1). The start depends on what you are challenging: for a tender notice, the day after publication in the perfil de contratante; for the pliegos, the day after the notice is published in the profile, provided it says how to access them; for procedural acts, the day after you learned of the possible infringement; for the award, the day after it is notified.

The trap sits in art. 50.1.b): as a general rule an appeal against the pliegos will not be admitted if the appellant submitted an offer or request to participate before lodging it, except on grounds of full nullity. Bidding is treated as acceptance of the rules. If a pliego is unlawful and it matters to you, decide inside the first fortnight — you cannot keep the option open by bidding. Where the ground is one of the nullity causes in art. 39.2 c) to f), art. 50.2 gives longer: 30 days from publication of the formalisation, or six months from formalisation otherwise.

What lodging it does

Under art. 53, lodging the appeal automatically suspends the procedure when the act challenged is the award — except for contracts based on a framework agreement or a dynamic purchasing system. For anything else you must ask: art. 49 allows interim measures to be requested even before the appeal is lodged, with a reasoned decision due within five working days.

Article 153.3 adds a standstill: where a contract is open to this appeal, formalisation cannot take place until 15 working days after the award notification is sent, and autonomous communities may extend that to a maximum of one month.

Access to the file is separate. Article 52 lets you ask the contracting body to see the file within the appeal period; it must give access within five working days — but the request does not stop the clock.

Timing and outcomes

The tribunal notifies the contracting body the same day and demands the file within two working days (art. 56.2); other interested parties get five working days to make submissions (art. 56.3); the tribunal must resolve within five working days of receiving those (art. 57.1). If two months pass with no notified decision, the appeal is deemed dismissed for the purpose of going to the contentious-administrative courts (art. 57.5).

A successful appeal can annul unlawful decisions, strike discriminatory technical, economic or financial requirements from the notice or the pliegos, and roll the procedure back; annulling a clause of the pliegos also annuls the acts approving it (art. 57.2). On request the tribunal may order compensation covering at least the cost of preparing the offer (art. 58.1). Its decision is directly enforceable and can only be challenged before the contentious-administrative courts (art. 59).

What to do about it

Diarise 15 working days from publication, not from when you noticed. Read the pliegos for showstoppers in week one and decide then whether to challenge or to bid — you cannot do both. Request access to the file immediately on an award you doubt, but draft as though it will not arrive in time. And weigh the downside: art. 58.2 allows a fine of €1,000 to €30,000 where the tribunal finds recklessness or bad faith in bringing the appeal or seeking interim measures.

Related terms

• PCAP in PPT (Španija) — dve zavezujoči dokumenti
• Perfil de contratante (Španija) — profil naročnika
• Pogodbe SARA / usklajena regulacija (Španija)
• PLACSP — španska platforma javnih naročil

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