EU public procurement and concessions reform spells change for Spain's public contract regime

Following extensive consultations with public purchasers, businesses, trade unions and civil society, the European Commission published, on 9 September, the proposal for a regulation on public procurement and concessions, known as the Public Procurement Act (COM(2026) 590). This is the most ambitious reform of the sector since 2014, as it seeks not only to simplify rules but also to transform public procurement into a strategic instrument for boosting competitiveness, innovation, sustainability and European economic security.

The need for this reform is underlined by special report No 28/2023 of the European Court of Auditors, which found that over 40 per cent of public contracts in the EU are awarded on the basis of a single tender, the number of bidders per procedure has fallen by almost half over the last decade, and average processing times have continued to rise since 2011. This is of the utmost importance, as public procurement accounts for around 15 per cent of the EU’s GDP.

Three directives to a single regulation

This far-reaching proposal does not merely amend the existing system: it replaces it in its entirety. The three directives adopted in 2014 (Directive 2014/23/EU on concessions, 2014/24/EU on general public procurement and 2014/25/EU on special sectors) would be repealed and superseded by a single regulation directly applicable in all member states.

Unlike directives, a regulation does not require transposition: it takes effect immediately and uniformly across all 27 member states, eliminating the differences in national legislation that have, in practice, fragmented the internal market. 

For Spain, this will entail a thorough review of the role of Law 9/2017 on public sector contracts within the harmonised framework, where the European legislation will henceforth take precedence. The proposal provides for a two-year transition period to allow member states and operators to prepare for the changes.

Fewer procedures, but more flexible

The proposal reduces the number of award procedures from the current six to four: open, dynamic, innovation and special direct award procedures.

The open procedure is the central mechanism: it may be conducted with or without prior selection criteria and generally incorporates the possibility of negotiating with tenderers, without the contracting authority having to demonstrate that any of the exceptional circumstances required by current legislation apply.

The dynamic procedure allows for the establishment of a pre-selected supplier base to award recurring contracts in a streamlined manner. The innovation procedure, which builds on the innovation partnership but has been substantially reformed, enables the public purchaser to set out a social challenge rather than fixed technical specifications.

The special direct award procedure is reserved for specific situations: technical monopoly, a declared emergency or essential security interests.

The widespread use of negotiation in ordinary procedures is the development with the greatest practical significance, as it involves a shift from a formal and rigid model to one focused on results and the value obtained.

Mandatory quality and the ‘comply or explain’ principle

Qualitative factors must account for at least 30 per cent of the tender evaluation, a threshold that rises to 50 per cent for labour-intensive contracts, curbing the almost exclusive award based on price. Contracting authorities may deviate from these thresholds, but must expressly justify doing so under the "comply or explain" mechanism.

Buying European: strategic autonomy and security of supply

For the first time, European legislation incorporates a horizontal framework to favour European products and operators in strategic sectors, distinguishing between countries covered by the World Trade Organization Agreement on Government Procurement and those that are not. In critical sectors such as healthcare, infrastructure and technology, the regulation allows for contractors to be required to demonstrate the traceability and resilience of their supply chain.

A digital ecosystem and the ‘once only’ principle

Digitalisation runs through the entire proposal: it envisages a network of interoperability between national platforms, a European Business Wallet with a single, reusable digital profile, and national data spaces connected to a central repository managed by the Commission. The aim is for businesses to need to submit their documentation only once, with it being valid for all procedures in which they participate.

Concessions, SMEs and contract amendments

Concessions are integrated into the general procurement regime, while preserving the rules on the transfer of operational risk that define their legal nature. To support small to medium-sized enterprises (SMEs) , it is prohibited to require prior experience in the public sector as a condition for participation.  Turnover thresholds are also capped to assist SME participation. On amendments, 15 per cent of the initial value is the threshold below which an amendment is considered non-substantial, whilst 50 per cent triggers enhanced transparency obligations without acting as an absolute limit on validity.

Next steps

The proposal now begins its parliamentary process, with approval expected no earlier than the end of 2027 and the possibility of significant changes during negotiations. Once published in the Official Journal, the regulation will apply two years after its entry into force.

Osborne Clarke commentary

Replacing three directives with a single regulation represents a firm commitment to uniformity over national discretion, with direct consequences for any company or organisation participating in public procurement across the European Union. Higher quality standards, supply chain traceability, a focus on the origin of goods and the possibility of negotiating in virtually any procedure will require a review of strategies for participation in the public procurement market. For Spain, the added challenge is to anticipate how the new European framework will coexist with domestic legislation.

If you would like to assess how this proposed regulation might affect your organisation or find out more about its legislative process, please do not hesitate to contact one of our experts or your usual contact at Osborne Clarke.