Urgent measures for the modernisation of the public administration

Written on 26 Jan 2021

On 1 January 2021, Royal Decree Law 36/2020 entered into force, approving a series of measures to facilitate the programming and implementation of actions eligible for financing under the European Recovery Instrument (the "RDL Law"), as well as the implementation of the Recovery Plan, Transformation and Resilience, (hereinafter the "Plan"), in order to boost economic growth and job creation, repair the damage caused by the impact of COVID-19, boost public and private investment, accelerate the ecological and digital transition, and strengthen resilience and cohesion in the European single market. The RDL has introduced modifications to Law 6/2018 on the General State Budget, Law 9/2017 on Public Sector Contracts, Law 40/2015 on the Legal System of the Public Sector, as well as various laws on environmental matters. Below we highlight the most relevant aspects introduced by the RDL Law.

New forms of public-private partnerships and modernisation of public administration

The main novelty is the creation of the "PERTE" - Strategic Projects for Economic Recovery and Transformation - for those projects, alone or integrated, that have a great capacity for economic growth, employment and competitiveness of the economy. The PERTE is a new type of public-private partnership, for which a registry will be opened in which the entities linked to the development of a PERTE will be registered, regardless of their public or private nature. The PERTE will be approved by agreement of the Council of Ministers at the proposal of the competent departments on the subject and must be accompanied by an explanatory report and, where appropriate, an explanation of their inclusion in the Plan and will be fully subject to the rules of competition.

Furthermore, a number of governance bodies are established, such as the Commission for Recovery, Transformation and Resilience, which will lead and coordinate the Plan; the Technical Committee for the Recovery, Transformation and Resilience Plan which will assist and technically support the Commission; the Sectoral Conference for the Recovery, Transformation and Resilience Plan, which will aim at cooperation between the State and the Autonomous Communities; Participation Forums and high-level groups to involve relevant actors in the implementation of the Plan; as well as the Social Participation Forum to encourage social dialogue with business organisations and trade unions.

A single web portal of the Plan has been created to centralise and channel all the information on the Plan for interested and related agents, as a "one-stop shop".

Early processing of administrative agreement files is allowed and their maximum duration is extended, with the possibility of receiving advances on the necessary preparatory actions.

Regulatory changes aimed at streamlining and enabling more efficient execution of the Recovery, Transformation and Resilience Plan

In order to achieve the effective implementation of the Plan, the RDL introduces modifications in the areas of subsidies, public procurement and the environment.

  • Acceleration of European funded grants

The RDL provides for advance processing without available credit and without application of the requirements set out in Article 56 of the Regulations of the General Law on Subsidies to those subsidies that can be financed with European funds, when it is proven that the budget amendment has been requested and the grant is subject to approval.

Authorisation by the Council of Ministers is no longer required for the award of grants and aid that can be financed from European funds, nor is authorisation by the Ministry of Finance required for the award of grants where there are public, social, economic, humanitarian or other duly justified reasons that make it difficult to award them publicly.

Non-competitive grants that can be financed from European funds are foreseen when they finance specific situations that do not require a comparative evaluation with other proposals. In this case, award decisions may be taken on a first-come, first-served basis until the budget appropriation allocated in the call has been exhausted.

The financial thresholds for the submission of documentation by the beneficiary are raised.

  • Public procurement specialities

Provision is made for the urgent processing of contracts and framework agreements that can be financed with funds from the Plan, if it is observed in the tender that the urgency of the situation prevents their ordinary processing. By way of example, in the open procedure, the time limits may be reduced by up to half (in excess), except for the time limit for submitting proposals, which will be a minimum of fifteen calendar days from the date the tender notice is sent.

The economic thresholds for the use of simplified, ordinary and shortened open procedures are raised, so that they apply to a greater number of contracts.

The preparation of standard technical and administrative specifications in contracts that manage funds from the Plan is promoted in order to homogenise and speed up the contracting processes.

An exception is made from the authorisation to contract those contracts and agreements that are going to be financed with funds from the Plan.

In relation to the special appeal in the matter of contracting those contracts financed with funds from the Plan and which have been processed electronically, a period of ten calendar days from the day following notification of the award decision is provided for the formalisation of the appeal, as well as a period of five working days from the lodging of the appeal for the body which is to decide on the grounds of inadmissibility of the appeal.

The use of own resources for the direct performance of services relating to works, supply and service contracts and works and service concessions is permitted without the authorisation of the Council of Ministers, which is generally required in such cases.

The term of energy supply and service contracts is extended to a maximum of ten years when certain conditions on the return on investment are met.

  • Environmental specialities

Procedures and deadlines are reduced in the ordinary, simplified or modification procedures, both for the Strategic Environmental Assessment and the Environmental Impact Assessment of Projects in projects initiated after the RDL came into force. Likewise, the processing times for integrated environmental authorisations are reduced.

Those projects financed in whole or in part with funds from the Plan are excluded from the environmental impact assessment when they are merely modernisations or improvements to existing facilities, do not involve the construction of new plants, an increase in the surface area affected, the addition of new buildings or the impact on water resources and through which it is intended to improve environmental conditions such as energy efficiency or the use of natural resources, the reduction of environmental impact or the improvement of sustainability.

Finally, the Ecological Restoration and Resilience Fund (FRER) is created and the Carbon Fund for a Sustainable Economy (FES-CO2) is modified to boost ecological transition.

Should you wish to know more about the new regulation contained in the RDL and its possible repercussions, please do not hesitate to contact one of our experts mentioned below or your usual contact at Osborne Clarke.