Spain – PPP Law

Under Spanish legislation the main contracts under which PPPs in the transport sector are implemented are:

• concession contracts for public works, where the selected bidder constructs (and finances directly or through financial entities) the project and is remunerated through the right to operate it for an agreed term (i.e. through collecting fees from users, receiving a fee from the contracting entity, or a combination of both); and
• management of public services contracts, where the selected bidder manages a public service and operates it and is paid either through collecting fees from users or receiving a fee from the contracting entity.

The principal piece of legislation regulating public sector contracts in Spain is Law 9/2017, of 8 November, on public sector contracts (“Law 9/2017”), which transposes European Directive 2014/23/UE and Directive 2014/24/UE.

Furthermore, the Spanish Government approved on 5 February 2020 Royal Decree-law 3/2020, 4 February (“RDL 3/2020”), transposing Directive 2014/25/UE and Directive 2014/23/UE, which mainly regulates contracting for certain entities that operate in water, energy, transportation and postal services, being such entities public sector entities and public companies which are not, stricto sensu, Public Administrations.

Certain specific regulations may apply to the awarding of works concession in public general interests ports (see “Public Private Partnerships in Ports”) and to the awarding of public contracts in public interests airports in Spain which are managed by AENA, the Spanish state-owned company that manages general interest airports in Spain (see “Public Private Partnerships in Airports”).

Key principles of the public procurement contracts regulation in Spain are:

• freedom of access to bidders, non-discrimination and equal treatment; and
• transparency and publicity of the proceedings.

Bidding Process

The Spanish scheme for PPP projects illustrates that a range of different procurement methods may need to be adapted for different types of projects.  The available processes can be summed up as:

• Open Procedure, which is the ordinary procedure, open for all interested bidders.
• Restricted Procedure, in which interested bidders submit an application of interest and the contracting entity selects the bidders invited to submit offers.
• Negotiated Procedure, an exceptional procedure requiring prior negotiation with the bidder and services that can only be carried out by a specific entity.
• Competitive Dialogue, which is also an exceptional procedure.

Granting Authorities

National, regional and local governments as well as other entities such as ADIF (Administrator of Railway Infrastructures) or the Port Authorities.

Further Reading

Apart from the embedded links to material and regulations in the overview above:

• the website of the Spanish Transport Ministry provides a broad overview on the transport sector (including ground transport, roads, railway, air and sea); and

• the website of the Spanish Commission for Markets and Competition also includes documents in relation to public procurements procedures in Spain (Report E/CNMC/004/18 – Overview of Public Procurement Procedures in Spain of 7 February 2019).