CNMC publishes a new guide to improve the preparation and design of Spain's public tenders

The National Commission for Markets and Competition (CNMC) has published a new volume of the 2011 Guide on Public Procurement and Competition, following the first two on planning (2021) and efficient use of own resources and agreements (2023).

The new version of the guide published on 23 April is addressed to public sector entities that intervene as purchasers of goods and services. It focuses on how to properly structure the crucial tender preparation and design stage in public procurement procedures, from the first steps of tendering to the design of tender documents.

The aim is to provide practical guidance so that, in the exercise of their technical discretion, they can better understand the impact of their decisions in terms of competition. 

'Preparatory phase' tools

The new text of the Spanish competition authority establishes preparatory actions for the adequate planning of public procurement needs by purchasing managers.

These include market studies, which are essential for public bodies to obtain information that allows them to define their needs, identify the solutions available on the market, adequately prepare tenders and select the most appropriate offer in terms of quality-price.

The 'preparatory phase' tools also cover preliminary consultations, which allow public bodies to be advised by third parties and obtain a dialogue with agents, operators and sectors that could provide knowledge on key issues.

It is worth noting that the aforementioned tools were developed in compliance with the highest guarantees of transparency and respect for free competition, and using modern techniques such as artificial intelligence.

Essential elements of specification design

The new guide offers, among others, the following suggestions for the design of the essential elements of the specifications:

• A precise, clear and neutral definition of the subject matter of the contract that attracts potential bidders and reflects the needs to be satisfied, with a focus on results.
• The division of the object of the contract into lots that favours competition and concurrence in the tender, considering as exceptional the non-disaggregation of the same.
• The introduction of social, environmental and innovation clauses in a non-discriminatory manner consistent with the principle of free competition.

Boosting SME participation

The participation of small to medium-sized enterprises (SMEs) in tenders determines the obtaining of a better value for money offer. In order to ensure participation, the guide states that a comprehensive market study should be carried out to identify the presence and weight of SMEs, as well as the main competitive variables and the reasons behind their low participation, which will in turn serve to design appropriate corrective measures.

Likewise, the text points out as crucial the dissemination of calls for tender beyond the mandatory channels, facilitating access to information on public procurement processes with measures such as the publication of annual procurement plans or the centralisation of all relevant information on the contracting entity's website.

Similarly, it will be essential to assist and train SMEs so that they understand and become familiar with public procurement processes, as well as simplifying the requirements, formalities and documentation required in the specifications to reduce administrative and bureaucratic barriers in the processes, allowing subcontracting as a guarantee of publicity and control.

All this combined with economic and qualitative award criteria based on objective parameters or establishing deadlines for the submission of bids adjusted to the complexity of the contract.

Other annex measures

Guidance on how to avoid technological capture in strategic purchases are included in the annexes. This includes reinforcing strategic planning and the capacities of those responsible for management, improving the design of contracts focused on the need to be resolved or the commitment to dynamic awarding procedures that prioritise publicity and competition, or the inclusion of clauses on intellectual property, interoperability and technological migration.

There are also recommendations to support local procurement bodies, suggesting the development of an annual procurement plan to promote transparency and participation of bidders and to implement e-procurement and digitisation of information.

A checklist to self-assess compliance in the tender preparation and design phase is also provided, with recommendations to promote competition and reduce the risk of collusion.

Should you wish to know more about competition law and/or public procurement, please do not hesitate to contact one of our experts listed below or your usual contact at Osborne Clarke.