Contracting profile

This is a courtesy translation. The legally binding version is the Spanish text.

Internal contracting instructions of Ciudad Residencial Universitaria, S.A. (CRUSA).

Internal contracting instructions

Body competent to approve them: the Board of Directors.
Date of approval: Board of Directors meeting of 1 February 2011.

I. Subject matter of the contracting instruction

The subject matter of these instructions is the regulation of the contracting procedures of the commercial entity Ciudad Residencial Universitaria, S.A. (hereinafter, CRUSA), which holds the status of contracting authority in accordance with Law 30/2007 of 30 October on Public Sector Contracts (Ley de Contratos del Sector Público, hereinafter, the LCSP). Accordingly, CRUSA's contracting shall comply with these instructions, which ensure the effectiveness of the principles of publicity, competition, transparency, confidentiality, equality and non-discrimination set out in point (a) of Article 175 of the LCSP, and the guideline that each contract shall be awarded to the party submitting the most economically advantageous tender.

These instructions shall be available to all parties interested in taking part in the procedures for awarding the contracts governed by them. They shall be published in the “CRUSA contracting profile”, in accordance with the provisions of point (b) of Article 175 of the LCSP.

II. Scope of application

These instructions shall apply to all contracts entered into by CRUSA. However, the following transactions and legal relationships fall outside the scope of these instructions:

a) Contracts subject to employment legislation.

b) Agreements that CRUSA may enter into with public authorities and the public bodies dependent on them, provided that their subject matter is not covered by that of the contracts governed by the LCSP or by special administrative rules.

c) Supply contracts relating to CRUSA's direct activities, where the goods concerned have been acquired for the purpose of returning them, with or without processing, to commercial trade, in accordance with its particular purposes.

d) Contracts relating to financial services connected with the issuance, purchase, sale and transfer of securities or financial instruments, treasury operations and those intended to raise funds for CRUSA, as well as the services provided by the Banco de España (the Bank of Spain).

e) Contracts of sale, donation, exchange, lease and other analogous legal transactions concerning real property, negotiable securities and intangible property, except those relating to computer programs which must be classified as supply or service contracts.

f) Contracts relating to arbitration and conciliation services.

g) Contracts under which CRUSA undertakes to deliver goods or rights or to provide a service.

h) Contracts whose subject matter is the provision of teaching activities in public-sector centres carried out in the form of staff training or development courses, as well as seminars, colloquia, round tables, lectures, collaborations or any other similar type of activity, provided that such activities are carried out by natural persons.

i) Contracts subject to harmonised regulation, the preparation of which shall be governed by the provisions of Article 121.1 of the LCSP, with the drawing up of a specification of particular conditions and a specification of technical requirements, and the award of which shall be governed by the provisions of Article 174 of the LCSP.

j) All other contracts and transactions excluded from the LCSP.

III. Principles governing contracting

The award of the contracts to which this Instruction refers shall be subject to the principles of publicity, competition, transparency, confidentiality, equality and non-discrimination.

a) Principles of publicity and competition

a.1) Publicity

Without prejudice to the provisions of section IX of these Instructions on minor contracts, CRUSA shall give publicity to the contracts it intends to enter into by publishing their tender in the “CRUSA contracting profile”, on its website (www.crusa.es). The tender notice must contain, as a minimum, the following particulars:

  1. A description of the essential characteristics of the contract and the maximum tender amount.
  2. The deadline for submitting tenders and for the remaining phases of the procedure.
  3. The award method and criteria.
  4. The subcontracting arrangements, where applicable.
  5. An invitation to make contact with CRUSA as the contracting party.

a.2) Exclusion from publicity. Request for tenders.

The following contracts shall not be subject to publicity, provided this is duly justified by the contracting body:

a) Those in which, following an open or restricted procedure, no tender or request to participate has been submitted, or the tenders are not suitable, provided that the initial conditions of the contract are not substantially modified. In the case of contracts subject to harmonised regulation, a report shall be sent to the Commission of the European Communities if it so requests.

b) Those which, for technical or artistic reasons or for reasons connected with the protection of exclusive rights, can only be entrusted to a particular contractor.

c) Those which, by reason of an imperative urgency resulting from events unforeseeable by the contracting body and not attributable to it, require prompt performance of the contract that cannot be achieved through the urgent-processing procedure governed by Article 96.

d) Those which have been declared secret or classified, or where their performance must be accompanied by special security measures in accordance with the legislation in force, or where the protection of the essential interests of State security so requires and this has been so declared in accordance with the provisions of Article 13.2.d).

e) In works contracts, where these involve additional works not included in the project or in the contract, or in the concession project and its initial contract, but which, owing to an unforeseen circumstance, become necessary to carry out the works as described in the project or in the contract without modifying it, and whose execution is entrusted to the contractor of the main works or to the concessionaire of the public works in accordance with the prices governing the original contract or, where applicable, prices fixed by mutual agreement, provided that the works cannot be separated technically or economically from the original contract without causing major inconvenience to the Administration or that, although separable, they are strictly necessary for its completion, and provided that the accumulated amount of the additional works does not exceed 50 per cent of the original contract price. Any other additional works not meeting the stated requirements must be the subject of a separate contract.

f) In works contracts, where these consist of the repetition of similar works awarded by open or restricted procedure to the same contractor by the contracting body, provided that they conform to a base project which was the subject of the initial contract awarded by those procedures, that the possibility of using this procedure was indicated in the tender notice for the initial contract, and that the amount of the new works was taken into account when setting the total value of the contract. The exclusion from publicity shall be admissible only for a period of three years from the conclusion of the initial contract.

g) In supply contracts, where these involve the acquisition of movable property forming part of the Spanish Historical Heritage, subject to prior valuation by the Board for the Classification, Valuation and Export of Spanish Historical Heritage Goods or a body recognised for that purpose by the Autonomous Communities, intended for museums, archives or libraries.

h) In supply contracts, where the products are manufactured solely for the purposes of research, experimentation, study or development; this condition does not apply to series production intended to establish the commercial viability of the product or to recover research and development costs.

i) In supply contracts, where these involve additional deliveries by the original supplier constituting either a partial replacement of supplies or installations in current use, or an extension of existing supplies or installations, where a change of supplier would oblige the contracting body to acquire material with different technical characteristics, giving rise to incompatibilities or disproportionate technical difficulties of use and maintenance. The exclusion from publicity shall be admissible only for a period of three years from the conclusion of the initial contract.

j) In supply contracts, where these involve the acquisition, on organised markets or commodity exchanges, of supplies quoted thereon.

k) In supply contracts, where these involve a supply arranged on especially advantageous terms with a supplier definitively ceasing its commercial activities, or with the administrators of an insolvency proceeding, or through a judicial arrangement or a procedure of the same nature.

l) In service contracts, where these involve additional services not included in the project or in the contract but which, owing to an unforeseen circumstance, become necessary to carry out the service as described in the project or in the contract without modifying it, and whose execution is entrusted to the contractor to whom the main contract was awarded in accordance with the prices governing it or, where applicable, prices fixed by mutual agreement, provided that the services cannot be separated technically or economically from the original contract without causing major inconvenience to the Administration or that, although separable, they are strictly necessary for its completion, and provided that the accumulated amount of the additional services does not exceed 50 per cent of the original contract price. Any other additional services not meeting the stated requirements must be the subject of a separate contract.

m) In service contracts, where these consist of the repetition of similar services awarded by open or restricted procedure to the same contractor by the contracting body, provided that they conform to a base project which was the subject of the initial contract awarded by those procedures, that the possibility of using this procedure was indicated in the tender notice for the initial contract, and that the amount of the new services was taken into account when setting the total value of the contract. The exclusion from publicity shall be admissible only for a period of three years from the conclusion of the initial contract.

n) Where the service contract in question is the outcome of a design contest and, under the applicable rules, must be awarded to the winner. Where there are several winners, all of them must be invited to take part in the negotiations.

ñ) In any event, where the estimated value of works, supply and service contracts is less than 50,000 euros.

o) Where, owing to the characteristics of the service, particularly in contracts whose subject matter is services of an intellectual nature and those included in category 6 of Annex II to the LCSP, it is not possible to establish their conditions with the precision required to award them by the procedure governed by this Instruction.

In contracting procedures where any of the grounds for exclusion from publicity listed above applies, it shall be necessary to request tenders from at least three undertakings capable of performing the subject matter of the contract, wherever this is possible.

a.3) Competition.

In furtherance of the principle of competition, the contract shall be awarded to “the most economically advantageous tender”. To this end, each of the tenders submitted shall be assessed in accordance with the specific criteria laid down in the relevant specification.

b) Principle of transparency

This principle entails:

  1. The possibility for all participants in the tender to know in advance the rules applicable to the contract to be awarded, as well as to be certain that those rules are applied in the same way to all undertakings.
  2. The setting of appropriate deadlines for the submission of tenders, which must be sufficient to allow undertakings to carry out a proper assessment, to remedy the documentation submitted, to evaluate the tenders and put forward the award proposal, and to formulate it. The deadlines shall be set, on a case-by-case basis, in the tender notice.
  3. The precise and prior setting out, in the tender notice, of the objective criteria applicable to the evaluation of tenders and the award of the contract, without the characteristics or experience of the tenderers, or the level or characteristics of the resources to be used for the performance of the contract, being taken into account. For the evaluation of tenders and the determination of the most economically advantageous tender, criteria directly linked to the subject matter of the contract must be applied, assessed by means of figures or percentages obtained through the application of formulas set out in the specifications, such as quality, price, the period for performance or delivery of the service, cost of use, environmental characteristics or those linked to the satisfaction of social requirements, profitability, technical value, aesthetic or functional characteristics, the availability and cost of spare parts, maintenance, technical assistance, after-sales service or others of a similar kind. Where a single award criterion is used, it must necessarily be the lowest price.
  4. The clear and precise determination of the body responsible for making the award proposal and awarding the contract.

c) Principles of equality and non-discrimination

These principles entail the following requirements:

  1. The non-discriminatory description of the subject matter of the contract, which must not refer to a particular manufacture or origin, or refer to a brand, a patent, a type, an origin or a particular production, unless such a reference is justified by the subject matter of the contract and is accompanied by the words “or equivalent”.
  2. Equal access for economic operators from all Member States of the European Union. CRUSA must not impose any condition that entails direct or indirect discrimination against tenderers, such as, for example, the requirement that undertakings interested in the contract be established in the territory of the same Member State or the same region as the contracting entity.
  3. The mutual recognition of qualifications, certificates and other diplomas. Where tenderers are required to submit certificates, qualifications or other supporting documentation, documents from other Member States offering equivalent guarantees must be accepted.
  4. The prohibition on providing, in a discriminatory manner, information that may give advantages to certain tenderers over the rest.

d) Principle of confidentiality

CRUSA may not disclose information provided by tenderers which they have declared to be confidential. Confidentiality applies, in particular, to technical or commercial secrets and to the confidential aspects of tenders.

For its part, the contractor must respect the confidential nature of any information to which it has access in connection with the performance of the contract that has been given such a designation in the contract or that, by its very nature, must be treated as such.

IV. Award proposal and contracting body

The award proposal for contracts with a value exceeding 50,000 euros shall be made by a Contracting Committee composed of at least 3 persons appointed by the Chairman of the Board of Directors.

For its part, the contracting body shall be the Chief Executive Officer (Consejero/a Delegado/a) of CRUSA.

The Contracting Committee may seek advice from technical specialists in the subject matter of the contract.

V. Conditions of eligibility of the contractor

The requirements as to capacity, prohibitions on contracting and solvency governed by Articles 43 to 68 of the LCSP shall apply to contractors.

As regards the prohibitions on contracting, it must be borne in mind that only those provided for in paragraph 1 of Article 49 of the LCSP shall apply to CRUSA.

The requirement for the classification of the contractor in the Official Registers of Tenderers and Classified Undertakings, which attests to the contractor's eligibility, shall be optional for CRUSA. However, classification certificates attesting to registration in official lists of contractors authorised to tender, established by the Member States of the European Union, create a presumption of eligibility of the contractors included in them in the cases referred to in Article 73 of the LCSP.

VI. Subject matter of the contract

The rules of Articles 74 and 75 of the LCSP on the subject matter and the price of contracts, respectively, shall apply. The estimated value of the contracts, on which depend the thresholds for contracts subject or not subject to harmonised regulation, the publicity arrangements and whether or not specifications are required, shall be the total amount of the contract, excluding Value Added Tax, taking into account any form of possible option and any extensions, in the manner provided for in Article 76 of the LCSP.

VII. Nature of the contracts and competent jurisdiction

The contracts entered into by CRUSA shall always be regarded as private contracts in accordance with Article 20.1 of the LCSP. The hearing of any litigious matters affecting the preparation, award, effects, performance and termination of such private contracts shall, pursuant to Article 21.2 of the LCSP, fall to the civil jurisdiction. Notwithstanding the provisions of the preceding paragraph, the special appeal in contracting matters under Article 37.1 of the LCSP shall be admissible only in respect of the service contracts included in categories 17 to 27 of Annex II with a value equal to or greater than 211,000 euros, the contentious-administrative jurisdiction being competent to hear the appeals lodged against the decision resolving that special appeal.

VIII. Award procedure

The award of all works, supply and service contracts shall be subject to the procedures governed below:

a) Preparation of the contract.

All contracting procedures shall begin with a report, to be submitted to the contracting body, determining the nature and extent of the needs to be met by the proposed contract, as well as the suitability of its subject matter and content for meeting them, the approximate cost of the contract, the existence of sufficient budget, the type of procedure proposed and the appropriateness in each case of the principle of publicity.

b) Decision to contract

The contracting body or the unit to which this competence is assigned shall take the decision on the initiation of the procedure.

c) Specifications of technical requirements and of particular conditions for certain service contracts.

For the service contracts included in categories 17 to 27 of Annex II to the LCSP with a value exceeding 211,000 euros, the rules laid down in Article 101 of the LCSP for the definition and establishment of technical requirements must be observed, and the provisions of Articles 102 to 104 shall likewise apply. Specifications of conditions must also be drawn up, containing the agreements and conditions defining the rights and obligations of the parties to the Contract and the other particulars required by the LCSP and its implementing rules.

d) Drawing up of the specification

In the case of contracts with a value exceeding 50,000 euros, CRUSA shall draw up a specification, to be published in the contractor profile and forming part of the contract, which must set out:

  1. The basic characteristics of the contract.
  2. The arrangements for the admission of variants.
  3. The methods for receiving tenders.
  4. The award criteria.
  5. The guarantees to be provided, where applicable.
  6. The penalties to be imposed, where applicable, in the event of breach by the contractor.
  7. Information on the conditions for the successful tenderer's subrogation into certain employment relationships in cases where such subrogation is mandatory in accordance with Article 104 of the LCSP.

e) Publication

Publication of the tender notice for a minimum period of ten days, unless the urgency of the contracting requires a shorter period. The notice shall appear in the “CRUSA contracting profile”, on its website (www.crusa.es), the insertion of additional notices in official gazettes, local publications or the Official Journal of the European Union being optional.

f) Opening of tenders

Tenders and requests to participate shall be secret, and the means shall be arranged for them to remain so until the moment of the public tender.

The opening and evaluation of the tenders shall be carried out by the Contracting Committee or the contracting body, as appropriate (chapter IV). The technical reports deemed relevant on the tenders submitted may be requested and, where applicable, undertakings may be required to remedy the defects detected in the documentation submitted.

g) Award of the contract

The award of the contract shall be decided by the contracting body, by means of a reasoned decision which must be notified to the candidates or tenderers and published in the “CRUSA contracting profile”. In the event that no tenders have been submitted or those submitted are unsuitable, irregular or unacceptable, the procedure shall be declared unsuccessful.

h) Formalisation of the contract.

The contract entered into by CRUSA must necessarily include the following particulars:

  1. Identification of the parties.
  2. Evidence of the signatories' capacity to enter into the contract.
  3. Definition of the subject matter of the contract.
  4. Reference to the legislation applicable to the contract.
  5. A list of the documents making up the contract.
  6. The price, or the manner of determining it.
  7. The duration of the contract or the estimated dates for the start and end of its performance, as well as those of the extension or extensions, if envisaged.
  8. The conditions for the receipt, delivery or acceptance of the services.
  9. The payment conditions.
  10. The cases in which termination is applicable.
  11. The objective and temporal scope of the duty of confidentiality that may, where applicable, be imposed on the contractor. The specification approved by the contracting body and published in the “CRUSA contracting profile” shall always be an integral part of the contract.

IX. Minor contracts

Works contracts with a value of less than 50,000 euros and service and supply contracts with a value of less than 18,000 euros may be awarded directly to any contractor with the capacity to act and holding the professional authorisation necessary to perform the service. Their processing requires only the approval of the expenditure and the inclusion of the invoice, as well as the works estimate in contracts of this kind.

In any event, interested undertakings may obtain additional information at the following address: (www.crusa.es)