Spanish Law on Public Sector Contracts (LCSP – by its Spanish acronym) provides that companies sanctioned for a serious breach of competition law may not enter into contracts with public administrations for the period and to the extent established in the decision of the CNMC or, where applicable, by the Ministry of Finance.

This prohibition on entering public procurement contracts operates as a sanction in addition to the fines established under Spanish Competition Law, and the CNMC has taken the view that it may be applied even where the penalised anti-competitive conduct is not related to public procurement.

Until now, the CNMC’s practice had been to include the prohibition on contracting in its decisions without determining its duration or scope. In such cases, the CNMC deferred the decision on these aspects to the Ministry of Finance.

The decision of 30 July 2025 to which this commentary refers was issued in a case where the CNMC considered that a company in the electricity sector had abused its dominant position. This is the first case where the CNMC has directly specified the scope and duration of the prohibition on entering public procurement contracts.

The prohibition on entering public procurement contracts can be avoided

The LCSP also provides for a mechanism that companies may use to avoid the application of the prohibition on entering public procurement contracts, even if they have been sanctioned for competition law infringements. These are known as self-cleaning measures.

In this respect, the LCSP provides that the prohibition on entering public procurement contracts shall not be declared when two cumulative conditions are met. First, when the company must prove payment or commitment to pay the fines imposed in the sanctioning decision and, second, when the company must have adopted appropriate technical, organisational and personnel measures to prevent future infringements.

Therefore, compliance programmes are extremely important, not only because they reduce the risk of competition law infringements but also because they mitigate the consequences if a breach occurs. However, not every programme qualifies to obtain this benefit. In 2023, the CNMC published a Communication on this matter, emphasising that, to avoid a prohibition on entering public procurement contracts, such programmes must demonstrate a genuine commitment to compliance that is integrated into the company’s daily decision-making processes.

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Background

The background of the case dates back to 2013, when the Slovak Football Association excluded a consortium, of which the company INGSTEEL was a member, from a tender procedure concerning works for the refurbishment and construction of football stadiums. The reason that they provided for the exclusion was that the consortium did not meet the requirements of the tender notice regarding its economic and financial capacity.

Following an earlier preliminary ruling (Judgement of the CJEU of 13 July 2017, Case C-76/16), the Slovak Supreme Court annulled the exclusion. Unfortunately, a framework agreement had already been concluded with the only remaining tenderer after excluding the Consortium.

As a result, the consortium sought compensation for the damages it suffered before the District II Court of Bratislava. After analysing the case, the Court decided to stay the proceedings and to refer the matter to the CJEU for a preliminary ruling about whether a national court refusing compensation for loss of opportunity acts in accordance with Directive 89/665. In its referral, it explained that INGSTEEL had sought compensation for loss of profit, since Slovak law provides that “compensation is to be paid for actual loss and loss of profit, unless otherwise specifically provided”, without explicitly recognising compensation for loss of opportunity.

Compensation for loss of opportunity

As a starting point, Article 2(1)(c) of the Directive 89/665 broadly provides that “Member States shall ensure that the measures taken concerning the review procedures specified in Article 1 include provision for powers to “(c)award damages to persons harmed by an infringement”.

As we have emphasised in previous Capsules, it is settled case-law of the CJEU that in order to interpret a provision of EU law “it is necessary to consider not only the wording of that provision but also the context in which it occurs and the objectives pursued by the rules of which it is part”. These three concepts, as understood by the CJEU in this case, are described as it follows:

• On the literal interpretation: the CJEU points out that Directive 89/665 is a broadly formulated provision and that, in the absence of any indication to distinguish different categories of damage, it may cover any type of damage.  This interpretation suggests, therefore, that the Union’s legislators did not intend to exclude the loss of opportunity to participate in a tender procedure as a compensable loss.

• On the contextual interpretation: the CJEU points out that it is settled case law that “individuals harmed by a breach of EU law attributable to a Member State have a right to compensation where three conditions are met: the rule of EU law infringed must be intended to confer rights on them; the breach of that rule must be sufficiently serious; and there must be a direct causal link between the breach and the damage sustained by those individuals”.

The highlight of this reading is that it is clear from the Directive 89/665 itself that the purpose of the appeal system is to ensure respect for the right to effective judicial protection, in accordance with Article 47 of the Charter of Fundamental Rights of the European Union.

• On teleological interpretation: the CJEU briefly points out that although the Directive 89/665 does not fully harmonise all possible remedies in the field of public tenders, it is clear that the legislator’s intention is to ensure that in all Member States the annulment of unlawful decisions as well as the compensation of injured parties is possible, without the legislator wishing to exclude any type of damage.

This objective would not be fulfilled if the Directive was interpreted as Member States being able to exclude, as a matter of principle, that compensation is obtained in case of loss of opportunity.

The CJEU’s reasoning is particularly clear when it ascertains that “while damage may result from the failure to obtain, as such, a public contract, it must be held that (…) the tenderer who has been unlawfully excluded to suffer separate damage, which corresponds to the lost opportunity to participate in the procedure for the award of a public contract concerned in order to obtain that contract”.

The quantification issue

The theoretical approach is clear. However, the CJEU notes that it will up to the legal system of each Member State to lay down the criteria for determining and quantifying the damage arising from loss of opportunity. On this point, the CJEU indicates that, although it is true that the Slovak courts have been interpreting that loss of profit must be compensated when it is “highly probable, or even close to certain”, the principle of primacy binds the courts to interpret their domestic law  in accordance with EU law “and that that obligation to interpret national law in conformity with EU law requires national courts to change established, and even settled, case-law if it is based on an interpretation of domestic law that is incompatible with the objectives of a directive”.

This can be interpreted as a recommendation to the Bratislava Court to cautiously review whether the narrow interpretation of “loss of profit” in Slovakia would, as a matter of principle, preclude the award of compensation for loss of opportunity because the threshold of proof requested (“highly probable loss of profit“) would be unattainable.

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At Faus Moliner we believe without a doubt that payment-by-results models are perfectly compatible with the LCSP. Reaffirming this message is very important, especially for advanced therapies whose public funding and/or purchase agreements at hospital/regional level are often linked to therapeutic outcomes.

The aspects of the LCSP that have generated debate in relation to payment-by-results  agreements are the prohibition of deferral of payment of the price (article 102.8 of the LCSP) and the maximum duration of continued supply contracts (article 29.4 of the LCSP).

No deferral of payments

A payment by results model would contravene the LCSP if it incorporated a payment deferral. In our opinion, there is no such deferral and, therefore there is no possible questioning in the light of the Article 102.8 of the LCSP. For there to be a deferral of payment there must be a payment obligation and its performance must be deferred in time. This is not the case in payment by results agreements since there is no initial deferred obligation; rather, the annual payment obligations arise periodically in the event that the results foreseen in the  price and reimbursement resolution are achieved (or, where appropriate, those foreseen in any agreement between the company and the hospital or with any other institution competent in the management of the healthcare provision).

Non-binding for a maximum term of 5 years

The LCSP provides for a maximum term of 5 years for supply contracts. It has been suggested that a payment by results model by which the company receives payments for a period longer than 5 years would be incompatible with the LCSP.

In our opinion, this view is not correct. Article 29.4 of the LCSP prohibits continued supply contracts with a duration of more than 5 years. Continued supply contracts are those in which the contracting entity purchases its product needs from a certain supplier for a determined period of time. In the case of medicinal products, this would be a contract in which the hospital/regional healthcare provider agrees to purchase its requirements for a medicinal product from a company for a certain period of time. The LCSP requires that these contracts have a maximum duration of 5 years to allow new competitors to enter the market at the end of each period. A duration of more than 5 years would prevent alternative suppliers from entering the public market for an excessive period.

The period in which the company receives payments if the expected results are achieved has is unrelated to the duration of the supply contract referred to in article 29.4 of the LCSP. This period is not limited by the LCSP and can be extended beyond 5 years. During this period, the contracting entity may acquire alternative supplies; therefore, there is no need to limit its duration to allow the entry of new suppliers into the public  market.

Conclusion

Payment by results agreements are compatible with public procurement rules. The period of time during which the company can receive payments if the expected results are achieved can be determined as deemed appropriate, without the LCSP imposing any restrictions in this regard.

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What do the new Guidelines say?

As a starting point, the Guidelines distinguish between joint bidding and bid rigging. The latter refers to agreements which aim to distort competition in public procurement procedures, pre-determining the tenderer to win, while creating the impression that the procedure is competitive. Bid rigging is a cartel and one of the most serious restrictions of competition. Joint bidding refers to a situation where two or more undertakings cooperate to submit a joint bid. The Guidelines identify a number of situations in which bidding consortia may be allowed or justified.

On the one hand, if the parties cannot individually participate in the tender and, therefore, are not competitors for the project performance, cooperation does not constitute a restriction of competition. A good example of this would a joint bidding agreement where two parties supply different products or services that are necessary to present an offer for the whole contract. However, the EC explicitly states that where parties are not able to bid for the whole contract, but to bid for one lot, they must be considered competitors. The EC also clarifies that the mere theoretical possibility of carrying out the project individually does not make the parties competitors; it is necessary to assess “whether each party is realistically capable of completing the contract on its own, taking into account the specific circumstances of the case”.

On the other hand, if the parties are capable of bidding individually and are, therefore, competitors, joint bidding might restrict competition. However, such joint bidding agreements between competitors may be justified under competition rules. As a general rule, cooperation may be justified if the joint bid allows the parties to submit a more competitive offer – in terms of price and/or quality – than the offers they could have submitted on their own, and the benefits for the parties and consumers outweigh the restrictions of competition. For example, where two competitors could individually bid for a lot, but only jointly could present an offer for the whole contract and realistically win the tender, joint bidding would be justified.

Finally, the Guidelines state that only the information strictly necessary for the formulation of the bid and the performance of the contract should be shared between the members of the consortium.

Our comments

We welcome these guidelines and believe they will facilitate collaboration, but it remains to be seen how the courts will interpret them. On the basis of the previous guidelines, our courts allow joint bidding where it is indispensable for the performance of the contract. However, some recent judgments have deviated from this position and justified cooperation on the grounds of economic reasonableness, a stance that appears to be more in line with these new Guidelines.

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The General State Budget Law for 2023 includes a final provision that introduces a series of amendments to the Spanish Law on Public Procurement (LCSP, according to its Spanish acronym). One particular amendment stands out: for the first time, the law regulates the procedure to be followed in the event that the contracting authority has well-founded indications of collusive behaviour in a public tender.

Article 150.1 LCSP, in its original version of 2017, already stipulated that if the contracting entity had well-founded indications of collusive behaviour, it had to inform the Spanish National Markets and Competition Commission (CNMC, according to its Spanish acronym) before awarding the contract so that the CNMC could issue the relevant report. However, the application of this provision was subject to the subsequent regulatory development of a procedure that had not yet been defined. For this reason, this provision of Article 150 LCSP had not entered into force.

Until now, the Central Administrative Court of Contract Appeals (see Resolution 60/2021) held that, although contracting authorities could request a report from the CNMC if they found evidence of collusive behaviour, such a report was optional and not mandatory. In practice, without a clear procedure, the application of this clause was very limited. From now on, the situation will be different: as from 1 January 2023, the procedure set out in Article 150.1 LCSP is in  place and contracting authorities will be obliged to follow it if there are indications of collusive behaviour.

The procedure

Broadly speaking, the procedure is as follows:

• The contracting authority notifies the CNMC (or equivalent regional body) of the reasonable grounds for suspecting collusion. The CNMC will issue a report within 20 working days. The tender procedure is suspended without informing the tenderers. If the report is not issued within such time-limit, the contracting authority may continue the tender procedure or initiate the adversarial procedure mentioned below.

• If the report concludes that there is no substantiated evidence of collusion, the procedure is resumed (without informing the tenderers). Conversely, if the report concludes that there is substantiated evidence of collusion, the suspension of the bidding process will be notified and published, and the parties will be given 10 working days to respond.

• Following this hearing, the contracting authority may, within 3 working days, request any reports it deems appropriate from the CNMC (or equivalent regional body).

• In the light of the allegations, evidence and reports in the file, the contracting authority shall decide within 10 working days whether or not there has been a collusive behaviour. It shall take into account the measures taken by the undertakings to avoid future infringements. If collusion is found, companies concerned will be excluded from the tender procedure and the file will be processed further. If no collusion is found, the bidding process continues as normal.

This notification to the CNMC may result in the initiation of disciplinary proceedings and the imposition of prohibitions on contracting for the companies concerned.

Collusion in public procurement: practical tips.

Finally, it is worth recalling the circumstances which, according to the CNMC itself, are indicative of collusive behaviour (see the CNMC’s own “Guide against fraud in public tenders of July 2020“):

• Low number of bidders, including competitors (possible market sharing).

• Inconsistent bids (the same company submits bids with unjustified significant differences compared to other tenders of the same type in which it has participated).

• Suspicious similarities between the financial and technical offers of several bidders.

• Suspicion of boycott (bidders unjustifiably refrain from bidding in order to obtain a change in the terms of the tender).

• Non-competitive bids (bogus or “side bids”, which that are clearly not intended to win the contract, but are made to appear competitive).

• Suspicious patterns of behaviour among bidders (one company being awarded the same contract, lots and/or territories or there is rotation among awarding companies).

• Unjustified subcontracting by one bidder to another competing bidder.

• Bids submitted by the same natural persons in respect of different companies.

• Financial offers with identical wording, identical format, wording or errors.

• Creation of joint ventures between competing bidders without apparent justification.

With the prospect of increased scrutiny of collusive behaviour in public procurement, these practices should be kept in mind in order to avoid engaging in such anti-competitive behaviour. The importance of having good regulatory compliance programmes is also reinforced. The same LCSP foresees that these programmes can be used to avoid contracting prohibitions, mitigate potential sanctions, and to be considered within the procedure set out in Article 150.1 LCSP.

La entrada The procedure to be followed when there is reasonable suspicion of collusive behaviour in public tenders aparece primero en Faus Moliner.

This judgment was delivered in the context of a dispute concerning the award of a public contract in Poland. One of the tenderers appealed against the award decision and requested access to certain information relating to the successful tender and a re-evaluation of all the tenders submitted. The contracting authority refused to grant access to this information on the grounds that it had been classified as confidential by the successful tenderer. According to the successful tenderer, disclosure of this information could harm its legitimate interests, given the commercial value of the information and the measures it had taken to keep it secret.

In the context of appeal against this decision, the Court held that the lack of complete information on the various tenders submitted could hinder a tenderer’s right to an effective remedy. The Court referred to the Court of Justice of the European Union (CJEU) a number of questions concerning the limits of confidentiality of information shared in the context of public procurement procedures.

Scope of confidentiality of information submitted in public procurement procedures

First, the CJEU examined whether European Directive 2014/24/EU on public procurement is compatible with a national law that requires the publication of all information provided by the tenderers in a public procurement procedure, with the sole exception of trade secrets.

Firstly, the CJEU considers that when Directive 2014/24/EU states that “the contracting authority shall not disclose information forwarded to it by economic operators which they have designated as confidential, including, but not limited to, technical or trade secrets”, it is protecting a wider range of confidential information than technical and trade secrets.

Secondly, the CJEU recalls that Directive 2014/24/EU also provides that “certain information on the contract award  […] may be withheld from publication where its release  […] would harm the legitimate commercial interests of a particular economic operator […]”. On these grounds, the CJEU found that national legislation which only allows trade secrets to be classified as confidential in the context of public procurement procedures is contrary to Directive 2014/24/EU.

According to the Court, information which does not fall within the concept of trade secrets may be classified as confidential under the Directive: (i) if it has commercial value outside the scope of the public contract in question, the disclosure of which might undermine legitimate commercial interests or fair competition or; (ii) if has no commercial value, the disclosure of which would be contrary to the public interest.

Under Spanish Law on public procurement (Ley de Contratos del Sector Público or LCSP), technical or trade secrets and information that could be used to distort competition may be considered confidential “amongst others”. According to the CJEU judgment of the CJEU, “amongst others” can be interpreted to include information the disclosure of which would harm legitimate commercial interests, beyond trade secrets.

Extrapolating the above to public health procurement, it could be argued that a “legitimate commercial interest” could include the price of a particular medicinal product, which is the is the result of a confidential analysis of economic information provided by the company to the Ministry of Health. Therefore, if this analysis were to qualify as a legitimate commercial interest under the criterion of the CJEU, it could be argued that it should be treated as confidential.

The possibility of treating all the information submitted by the tenderer as confidential

The CJEU also examines whether a provision which allows all the documents proving the technical capacity and the means of performing the contract to be treated as confidential is compatible with the principles of the Directive. The CJEU states that access to such information may be refused only if the contracting authority finds that (i) if such information has a commercial value outside the scope of the public contract in question, its disclosure might undermine legitimate commercial or fair competition; or (ii) if it has no such commercial value, its disclosure will impede law enforcement or would be contrary to the public interest. In any event, access to the “essential content” of such information shall be granted in such a way as to ensure compliance with the tenderers’ right to an effective remedy.

Where access to information submitted by the successful tenderer is refused on the grounds that it has been wrongly treated as confidential, the CJEU concludes that it is not necessary to adopt a new award decision if: (i) national procedural law permits measures to restore compliance with the right to an effective remedy, or; (ii) the unsuccessful tenderer is given the opportunity to bring a new action against the award decision. In the latter case, the time limit for bringing such an action shall start to run from the date on which the applicant has access to all the information.

Conclusion

This judgment helps to outline the scope of confidentiality obligations in public procurement, while confirming that the Directive protects a broader scope than trade secrets. According to this judgment, it could be argued that confidentiality in public procurement could also include other information, the disclosure of which would harm legitimate commercial interests. In the area of public health procurement, this would provide further grounds to argue that the unit price of medicinal products should not be disclosed, on the basis of legitimate commercial interests.

The judgment also explains the need to ensure access to the essential content of the information supporting technical solvency and the means by which the contract is to be performed. The remaining information may be classified as confidential if it is demonstrated that its disclosure could undermine legitimate commercial interests, fair competition or the public interest. All this while guaranteeing tenderers the right to an effective remedy.

La entrada The scope of confidentiality in public procurement: beyond trade secrets aparece primero en Faus Moliner.

The Spanish Government lodged an appeal of unconstitutionality against Foral Law no. 17/2021, of 21 October, which regulates certain aspects of public procurement in Navarra, as per the Official State Gazette of 21 September 2022. This Law modifies the traditional system for the purchase of medicinal products for hospital use with the aim of making it more flexible.

In particular, this law excludes from the scope of application of public procurement rules the purchase of all medicinal products financed by the NHS and which price is set by the Ministry of Health.

Exclusion is expected to be implemented in the following way:

• In the first stage, the conditions to be met by potential suppliers (payment system, penalties, volume and quality of the product, etc.) would be determined and the existing credit would be justified. At this stage, no units of product would be purchased and companies could join the system on a voluntary basis.

• In subsequent stages, hospitals would purchase the necessary quantities of medicinal products from one of the companies that had adhered to the conditions set out in the first stage. These contracts would be subject to the provisions of Private Law.

The Spanish Government contends that this Foral Law infringes the State’s exclusive law-making powers in “basic legislation on administrative contracts and concessions” and “legislation on pharmaceutical products”. On the contrary, Navarra believes that the law complies with the applicable legal framework, as it governs a matter included within regional law-making powers in “administrative contracts and concessions”, which can be fully exercised while “respecting the essential principles of the basic State legislation on the matter“.

Recall that Navarra’s law-making powers differ from that of ordinary Autonomous Communities. Hence, it is able to enact its own rules on public procurement on the sole condition that it respects “the essential principles” of the basic State regulations. The Constitutional Court defines these “essential principles” as the ideas that characterise and constitute the basis of State regulation, but does not refer to any specific provisions. Therefore, we must wait for the Constitutional Court to define what are the essential principles of the Law on Public Procurement, and assess whether the Foral Law respects these principles by providing for this special system for the purchase of certain medicinal products.

This issue may have further implications at EU level. The Constitutional Court must assess whether the Foral Law’s special regime  is compatible with Directive 2014/24/EU on public procurement. As regards this matter, the Law of Navarra has relied on the ECJ judgment of 2 June 2016 (Case C-410/14) and on the purposive approach of the public procurement rules that prevails at European level.

European case law holds that the purpose of public procurement rules is to safeguard competition, and that the existence of a decision to select one economic operator amongst various is a basic element of the concept of public contract. Therefore, according to this judgment, public procurement law shall no longer apply if no such selection exists.

Regardless of the outcome of this appeal to the Constitutional Court, it is interesting to discuss the application of the Law on Public Procurement to the procurement of innovative medicines (which are exclusive to a single company, and have a funding resolution from the NHS and a price set by the Ministry of Health). Considering that selection does not take place (there is only one possible supplier) and that the main economic condition (price) has already been set by the administration, it could be argued that it is pointless to apply the Law on Public Procurement in order to safeguard competition. This perspective was presented in our contribution to the public consultation process of the draft bill amending the Law on Guarantees and Rational Use of Medicinal Products and Medical Devices.

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A new trend in the public procurement of medicinal products is timidly making headway. Both the industry and the public sector are interested in exploring new formulas to evolve from a traditional model to a new relationship based on different concepts. This would change the role of the industry itself, as it would come to provide solutions and services that complement the supply of the product. This, in turn, would improve the patient’s situation, hospital management, or allow for cost reductions. Hence, the industry would act more as a partner than as a supplier. Public procurement would be considered an investment rather than mere expenditure.

At the end of the day, this encourages a redefinition of the purpose of contracts, which would shift from mere supply of products to contracting solutions that create value, thus rendering measurable results that can be remunerated, if necessary under risk-sharing or similar agreements.

These proposals require a change in the culture of the contracting bodies, so that better and different use is made of the mechanisms already available in the Law on Public Procurement to elaborate contracts with a composite purpose, notably mixed contracts.

Price in the case of mixed contracts

In this context, on 26 May, the Central Administrative Tribunal of Contractual Appeals (TACRC) issued a resolution following an appeal filed by Faus Moliner in the interest of one of our clients. The resolution comes to clarify the rules of the game, thus providing greater legal certainty to all stakeholders.

This was the case of a tender to contract the supply of specific medicinal products, along with a set of logistical services so as to facilitate hospital management and the provision of software for inventory control purposes. However, the contract price was determined solely based on the unit price of the medicinal products.

Tribunal states that, according to the Law on Public Procurement, the price of a contract with multiple provisions (products and services) may be set with reference to only one of the provisions (the product). However, the price of the latter must somehow include, consider or reflect the value of the remaining provisions. In addition, this must be explained in the relevant economic report.

Therefore, the contracting body may set the price of a mixed contract only on the basis of the unit price of the relevant medicinal product. Nonetheless, the corresponding economic report must specify that the remaining services are also being remunerated through the purchase price of the product.

La entrada New public procurement models, value has a price tag aparece primero en Faus Moliner.

On 2 March 2022, Royal Decree-Law 3/2022 on measures to enhance sustainability in road freight transport and on the functioning of the logistics chain was published in the Official Journal. This legal instrument includes an interesting Additional Provision on medicinal products against COVID-19.

According to this Additional Provision, certain medicinal products may be supplied outside the Public Procurement Law, merely by executing a contract without a public call for tender.

Which products can be purchased without tendering?

This special regime applies to authorized medicinal products (whether by Spanish or EU authorities), which meet a particular medical need in the fight against COVID-19 that is not yet covered. As explained in the preamble, this includes products that may reduce the risk of serious illness and death due to COVID-19, or those aimed at preventing this disease. This special regime does not apply to products that have not received a marketing authorization (i.e., medicines for compassionate use), but may apply to products that are subject to a conditional authorization.

Who and when?

According to this Royal Decree-Law, these special contracts that do not require a public call for tender may be entered into with any public body integrated in the Spanish central administration. Regional authorities (are not authorized to operate under this special regime.

These contracts may be concluded until 31 December 2022.

Characteristics of supply agreements

The wording of this Royal Decree-Law suggests that this special regime will only apply to supply agreements that are governed by a law different from Spanish one..

In addition, these agreements may include liability clauses other than those set out in the Law on Guarantees and Rational Use of Medicinal Products and Medical Devices. Special liability regimes may be provided for, as was the case with vaccines.

Lastly, these contracts may include advance payment clauses without the need to comply with the conditions set out in the General Budget Law.

La entrada Procurement of COVID-19 medicinal products outside public procurement rules aparece primero en Faus Moliner.

The judgment under analysis derives from Resolution no. 122/2019, of 25 March, of the Council of Transparency and Good Governance (CTBG, according to its Spanish acronym). A company that submitted a bid in the context of a public tender and was not awarded the contract requested the Ministry of Public Works and Transport to provide access to “the documentation relating to the bid that was finally awarded and to all that which served as a basis for the award”. The Ministry rejected the request on the grounds that it was unjustifiably abusive. According to the Ministry, in the context of the contracting procedure in which the company participated as a bidder, it received all information to which it was entitled pursuant to the Law on Public Sector Contracts.

In view of this denial of access, the bidder lodged a complaint with the CTBG. As a result, the CTBG partially upheld the complaint and ordered that the requested information be provided. However, the CTBG clarified that “information affecting technical or trade secrets and confidential aspects of the awarded bid” should not be provided.

The Ministry of Public Works and Transport filed a judicial appeal against the decision of the CTBG and obtained a favourable ruling. The Central Administrative Court no. 4 analysed whether “controlling the performance of the contract“, which was the interest invoked by the company requesting access to information, served the purpose of the Law on Transparency, Access to Information and Good Governance. The Court concluded that this was not the case, as the purpose of this Law is to control public action, not “the conduct of the awardee in a phase that did not involve actions by the Ministry of Public Works and Transport”.

The decision of the Spanish National Criminal and Administrative Court

The Spanish National Administrative Court overturns the lower Court’s judgement and states that unsuccessful bidders, even if they have not challenged the award, have the right to access documentation produced throughout the performance of the contract, provided that the limits set out by the CTBG are respected. Thus, information affecting technical or trade secrets and confidential aspects of the awarded tender must never be provided.

On the basis of the Law on Transparency, Access to Information and Good Governance, this ruling of the Spanish National Administrative Court grants any person the possibility to access information produced by any Public Administration in relation to the performance of public contracts. According to this judgment, the way in which a given contractor performs the contract is not foreign to the contracting administration and affects the public interest. The Court further emphasised that the contracting administration must control that the provision of the relevant service complies with the contract, and the way in which it does so is undeniably of public interest. Therefore, the documentation generated in the performance of the contract must also be transparent.

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