The Agency

Instructions Governing the Award of Contracts Not Subject to Harmonised Regulation of the “Alicante Provincial Energy Agency – Valencian Community Foundation”

CHAPTER I

GENERAL CONSIDERATIONS

1. Background

The Alicante Provincial Energy Agency – Valencian Community Foundation (hereinafter “the Foundation”) frequently requires the contracting of companies or institutions to carry out various types of work that cannot be performed with its own staff, in order to achieve its foundational objectives.

The Foundation manages public funds while pursuing the general interest, and therefore these instructions are mandatory for the Foundation, as indicated in the Revised Text of the Public Sector Contracts Law (Royal Legislative Decree 3/2011 of 14 November). They must be made available to all parties interested in participating in the contract award procedures governed by them and published on the Foundation’s Contractor Profile.

These internal Instructions establish the award system for contracts not subject to harmonised regulation, in accordance with the principles of publicity, competition, transparency, confidentiality, equality and non-discrimination that govern public sector contracting.

2. Legal Status of the Alicante Provincial Energy Agency – Valencian Community Foundation

The Foundation is a non-profit organisation belonging to the public sector for contracting purposes, pursuant to Article 3.3 of the Revised Text of the Public Sector Contracts Law (Royal Legislative Decree 3/2011). It is currently financed mainly by the Provincial Council of Alicante, which itself forms part of the public sector pursuant to Article 3.1(a) of the same regulation.

The Foundation meets the three legal conditions to be considered a contracting authority: it has legal personality, it is established to meet general needs, as stated in its Statutes, and it operates under public sector contracting criteria.

3. Legal Framework for Contracting

The contracts concluded by the Foundation are considered private contracts in accordance with Article 20.1 of the TRLCSP.

The preparation and award of contracts is governed by the TRLCSP, its implementing regulations and these Internal Contracting Instructions. Supplementary application of other administrative or, where applicable, private law regulations will apply. Their effects and termination are governed by private law.

4. Purpose and Scope of the Contracting Instructions

According to Article 3.3(b) of the TRLCSP, the Foundation is considered a contracting authority, which determines the applicable legal framework and the need to adopt internal contracting instructions in accordance with Article 191 of the TRLCSP.

The objective of these instructions is to define the contracting processes to be followed by the Foundation and to ensure their integration with the current public procurement legislation.

5. Contracting Authority

The contracting authority shall be designated in accordance with the Foundation’s Statutes and may be assisted by a Tender Committee where required by Article 320 of the TRLCSP.

6.Capacity

6.1 General eligibility to contract with the Alicante Provincial Energy Agency – Valencian Community Foundation

1. By virtue of Article 54 of the TRLCSP, natural or legal persons, whether Spanish or foreign, may contract with the Foundation provided that they have full legal capacity to act, are not subject to any prohibition on contracting, and can prove their economic and financial standing as well as their technical or professional solvency, or, where required, hold the appropriate classification.
2. Likewise, business owners must have any business or professional authorisation that may be required to carry out the activity or service that constitutes the object of the contract.

6.2 Proof of eligibility to contract

As set out in Article 72 of the TRLCSP regarding the legal capacity of economic operators that are legal persons:

1. The legal capacity of economic operators that are legal persons shall be evidenced by the deed or document of incorporation and, where applicable, amending deeds, the articles of association or the founding act, in which the rules governing their activity are set out, duly registered, where appropriate, in the relevant public register according to the type of legal person concerned.
2. The legal capacity of non-Spanish economic operators who are nationals of Member States of the European Union or signatories to the Agreement on the European Economic Area shall be evidenced by their registration in the corresponding register in accordance with the legislation of the State in which they are established, or by submission of a sworn statement or certificate, under the terms laid down in the applicable EU provisions.Specifically, such capacity shall be evidenced by registration in the corresponding registers or by providing the certificates indicated in the general conditions, depending on the type of contract.
3. Other foreign economic operators must prove their legal capacity to act through a report issued by the Permanent Diplomatic Mission of Spain in the relevant State or by the Consular Office within whose territorial scope the company’s registered office is located. This report must certify that the State of origin of the foreign company likewise allows the participation of Spanish companies in contracting with its Administration and with public sector entities comparable to those listed in Article 3 of the TRLCSP, in relation to public sector contracts in the Kingdom of Spain. In addition, they must provide a Certificate from the Spanish Commercial Registry evidencing registration of their branch in Spain, stating the appointment of attorneys or representatives in Spain.
4. In the case of a sole proprietor (individual entrepreneur), the National Identity Document must be submitted and, where applicable, the duly legalised power of attorney, or certified copies thereof.

6.3 Special compatibility conditions

1. Natural or legal persons from States that are not members of the European Union must provide, together with the documentation submitted, a report from the relevant Spanish Permanent Diplomatic Mission certifying that the State of origin of the foreign company likewise allows the participation of Spanish companies in contracting with its Administration and with entities, bodies or organisations in its public sector comparable to those listed in Article 3 of the TRLCSP, in a substantially analogous manner.In the case of works contracts, it will also be necessary for such companies to have a branch open in Spain, with appointed attorneys or representatives for their operations, and to be registered in the Spanish Commercial Registry.
2. Companies that have taken part in drafting the technical specifications or preparatory documents for the contract may not participate in the tender where such participation could restrict free competition or result in privileged treatment compared to other bidders, as provided for in Article 56.1 of the TRLCSP.
3. In contracts whose object is the monitoring, supervision, control and management of the execution of works and installations, the corresponding contracts may not be awarded to the same companies that carried out the works, nor to companies linked to them, such links being understood as any of the situations referred to in Article 42 of the Commercial Code.

6.4 Special rules on capacity

1. Legal persons may only be awarded contracts tendered by the Foundation where the services to be provided fall within the purposes, object or scope of activity which, according to their statutes or founding rules, are proper to them, in accordance with Article 57.1 of the TRLCSP.
2. In any event, non-Spanish companies from Member States of the European Union shall be considered capable of contracting with the Foundation if, under the legislation of the State in which they are established, they are authorised to provide the service in question.
3. Where the legislation of the State in which such companies are established requires a special authorisation or membership of a particular organisation in order to provide the relevant service, they must prove that they comply with this requirement, as stated in Article 58.1 of the TRLCSP.

6.4.1 Groupings (unions) of economic operators

With regard to groupings (unions) of economic operators, the following must be taken into account, as set out in Article 59 of the TRLCSP:

1. Temporary groupings of economic operators formed specifically for the purpose of submitting a tender may contract with the Foundation without needing to formalise the grouping in a public deed until the contract has been awarded in their favour.
2. Economic operators participating jointly in a temporary grouping shall be jointly and severally liable and must appoint a single representative or attorney-in-fact of the grouping, with sufficient powers to exercise the rights and fulfil the obligations arising from the contract until its termination, without prejudice to any joint powers they may grant for sizeable collections and payments.
3. For tendering purposes, economic operators wishing to tender as part of a temporary grouping must indicate the names and details of the members and their respective shares, as well as their commitment to formally constitute themselves as a temporary grouping should they be awarded the contract.
4. The duration of temporary groupings of economic operators shall coincide with the duration of the contract until its termination.
5. Where the Foundation requires a specific classification, and the grouping includes Spanish companies, non-EU foreign companies and EU foreign companies, the Spanish companies and non-EU companies must prove their classification, while EU companies must prove their economic, financial and technical or professional solvency.

7. Prohibitions on contracting

1. No person or entity may contract with the Foundation if they fall under any of the circumstances set out in Article 60 of the TRLCSP.
2. These prohibitions also apply to those persons or companies which, due to the individuals who manage them or other circumstances, may reasonably be presumed to be a continuation or a result, through transformation, merger or split, of other companies in which such circumstances have previously occurred.
3. Proof that an economic operator is not subject to a prohibition on contracting may be provided by means of a responsible (sworn) declaration from the entity, or by a court order or administrative certificate, as determined in each case.
   1. In the case of companies from Member States of the European Union, and where this option is provided for under the legislation of the State concerned, such proof may also be substituted by a responsible declaration given before a judicial authority.
4. The documentation required to prove these circumstances shall be specified in the general conditions.
5. The rules contained in this section are applied in compliance with the provisions of the TRLCSP.

8. Solvency of the Contractor
8.1 Requirement of Solvency

1. In order to conclude contracts with the Foundation, under the provisions of article 62 of the TRLCSP, employers must demonstrate that they are in possession of the minimum conditions of economic, financial and professional or technical solvency determined by the contracting authority. This requirement may be replaced by that of the classification, when so determined by the contracting authority in the documents.
2. The minimum solvency requirements and the documentation required to prove them will be indicated in the tender announcement and will be specified in the general conditions, and must be linked to its object and be proportional to it.
3. To prove the solvency necessary to conclude a certain contract, the entrepreneur can rely on the solvency and means of other entities, regardless of the legal nature of the links he has with them, provided he demonstrates that, for the execution of the contract, he effectively has those means.
4. The contracting authority may require the legal entities to specify, in the offer or in the request for participation, the numbers and professional qualifications of the personnel responsible for executing the provision.
5. The contracting authority may require the candidates or tenderers, making it appear in the general conditions, that in addition to proving their solvency or, as the case may be, classification, they undertake to devote or assign to the execution of the contract the personal or material means sufficient for it. These commitments will be integrated into the contract, and will have the character of essential obligations.
6. To prove the necessary solvency, the entrepreneur can rely on the solvency and resources of other entities, regardless of the legal nature of the links he has with them, as long as he demonstrates that he effectively has those resources for the execution of the contract.

8.2 Means of Accreditation

Economic, financial and technical or professional solvency can be proven:

1. By providing the documents that are determined by the contracting authority from among those provided for in articles 75 to 79 of the TRLCSP.
2. Through the classification of the employer when it is determined by the contracting body that certifies the solvency of the employer for the celebration of contracts of the same type as those for those that have been obtained, through a certificate issued by the Official Registry of State Tenderers.

9. Guarantees

1. The Provincial Energy Agency of Alicante Fundación de la Comunitat Valenciana, in accordance with the provisions of article 104 of the TRLCSP, may, if it deems it appropriate, require the provision of a guarantee to the bidders or candidates, to respond to the maintenance of their bids until the provisional and, where appropriate, final award of the contract or to the awardee, to ensure the correct execution of the provision.
2. The amount of the guarantee, as well as the regime for its return or cancellation will be established by the Foundation, taking into account the circumstances and characteristics of the contract.

These guarantees may take the following forms, in accordance with the provisions of article 94 of the TRLCSP:

1. In cash, it must be deposited in the bank determined by the Foundation.
2. Through guarantee, loaned in the form and conditions established by the current development rules, by any of the banks, savings banks, credit unions, financial credit establishments and mutual guarantee societies authorized to operate in Spain, which must be deposited in the Foundation.

10. Contractor Profile

1. The contracting body, in accordance with article 53 of the TRLCSP, and in order to ensure transparency and public access to information relating to the contractual activity of the Foundation, will disseminate, through the institutional website of the Provincial Energy Agency of Alicante Foundation of the Valencian Community, its contractor profile.
2. In the contractor profile, it will be stated how much information may be relevant in relation to the procurement procedures carried out by the Foundation and, in any case, that which is expressly required in the TRLCSP or in these instructions.
3. The way to access the contractor profile will be specified on the Foundation’s institutional website, in the bidding documents and announcements.
4. In order to comply with the requirements of article 191 of the TRLCSP, these instructions will be published in the contractor’s profile, making them available to all those interested in participating in the contract award procedures held by the Foundation.

11. TYPES OF CONTRACTS ENTERED INTO BY THE FOUNDATION

The contracts that the Foundation may enter into are classified into the following essential categories:

11.1 Minor contracts (direct award)

1. The following are considered minor contracts in accordance with the LCSP:
   1. Works contracts with a value of less than €50,000 (excluding VAT).
   2. Any other type of contract with a value of less than €18,000 (excluding VAT).
2. Minor contracts require only a simplified file, for which the approval of the expenditure and the inclusion of the corresponding invoice are sufficient. In the case of works contracts, a budget must also be included, without prejudice to the need for a technical project where specific regulations require it.

11.2 Supply and service contracts below €50,000 and not considered minor.
11.3 Contracts entered into by the Foundation with a value exceeding €50,000 that are not subject to harmonised regulation.

12. COMPETENT JURISDICTION

1. The jurisdiction competent to resolve disputes related to the preparation and award of contracts entered into by the Foundation shall be the contentious-administrative courts in the case of contracts subject to harmonised regulation, and the civil courts in the case of contracts not subject to harmonised regulation.
2. The civil jurisdiction shall in all cases be competent for resolving disputes arising between the parties in relation to the effects, performance and termination of all contracts entered into by the Foundation.

CHAPTER II

CONTRACTS NOT SUBJECT TO HARMONISED REGULATION

13. PREPARATION OF CONTRACTS
13.1 Minor contracts

Minor contracts (works contracts valued at less than €50,000 and any other type of contract valued at less than €18,000) require only a simplified file, which consists of approving the expenditure and including the corresponding invoice. In the case of works contracts, a budget must also be included, without prejudice to the existence of a required technical project where specific regulations so establish.

13.2 Supply and service contracts below €50,000 and not considered minor

Supply and service contracts below €50,000, and which are not minor according to section 11.1 of these Instructions, require only the request of three offers. The contract shall be awarded to the most economically advantageous tender in accordance with the negotiated procedure (Articles 177.2 and 178 TRLCSP).

13.3 Contracts entered into by the Foundation with a value exceeding €50,000 and not subject to harmonised regulation

1. For the contracts mentioned in this section, the Foundation must prepare a tender specification document, which will form part of the contract.
2. Minimum content of the specification:
   1. The basic characteristics of the contract.
   2. Rules for the acceptance of variants.
   3. Methods of submission of offers.
   4. Award criteria.
   5. Guarantees required, where applicable, from bidders or the awarded contractor.

14. AWARD OF CONTRACTS

Contracts not subject to harmonised regulation must comply with the principles of publicity, competition, transparency, confidentiality, equality and non-discrimination. The contract shall be awarded to the most economically advantageous tender.

For evaluating bids and determining the most economically advantageous tender, criteria directly linked to the object of the contract must be considered, such as: quality, price, formulas applicable for revising remuneration linked to the use of the work or service, execution deadline, environmental characteristics, technical value, cost of technical assistance, spare parts, after-sales service, or any other similar criteria defined by the contracting authority.

When only one criterion is used for evaluation, it must necessarily be the lowest price.

15. CONTRACTING PROCEDURES TO BE FOLLOWED

Works, supply and/or service contracts, as defined by the TRLCSP, that are not subject to harmonised regulation may be awarded by the Alicante Provincial Energy Agency – Valencian Community Foundation through any of the following procedures: minor contracts, negotiated procedure, open procedure, restricted procedure, and competitive dialogue.

16. CRITERIA FOR EVALUATING TENDERS

1. Contracts must be awarded to the most economically advantageous tender. In determining the most economically advantageous tender, criteria directly linked to the subject matter of the contract must be applied.
2. When a single award criterion is used, it must necessarily be the lowest price. However, the contract shall not be awarded to a tenderer whose offer, although apparently the most advantageous, is deemed by the contracting authority to be incapable of being fulfilled due to the presence of abnormally low or disproportionate values.
3. The award criterion/criteria shall be determined by the contracting authority and detailed in the contract notice and in the general conditions.

17. CONFIDENTIALITY

1. The Foundation shall not disclose any information provided by economic operators that has been designated as confidential. This confidentiality particularly covers technical or commercial secrets and confidential aspects of the tenders.
2. Likewise, the contractor must respect the confidentiality of any information accessed during the performance of the contract that has been classified as such in the award document, or which by its nature must be treated as confidential. The obligation of confidentiality shall remain in force for five years from the date on which the information becomes known, unless a longer period is specified in the contract.
3. Accordingly, the reproduction, distribution, communication, transformation, disclosure or any manipulation of the Foundation’s confidential information—whether contained in digital or physical format—to any third party, whether natural or legal, free of charge or for payment, is expressly prohibited.
4. The contractor shall be responsible for ensuring that the confidentiality obligations are fulfilled by its staff and by any collaborators or subcontracted entities.
5. The contractor shall allow access to confidential information only to those persons who need to know it for the performance of the contracted activities and services.

18. SUBMISSION, RECEIPT AND OPENING OF TENDERS

The submission, receipt and opening of tenders, and the award of contracts, shall be conducted as follows:

18.1 Deadline for receipt of tenders

1. In the open procedure, the deadline for receipt of tenders shall not be less than 20 days from the date of publication of the call for tenders in the Contractor Profile.
2. In the restricted procedure, the deadline shall not be less than 10 days from publication.
3. These deadlines may be reduced for duly justified urgent reasons, provided they never fall below 7 days.
4. Deadlines shall be calculated in calendar days.

18.2 Submissions by tenderers

1. Each tenderer may submit only one tender, regardless of the number of locations where it may be submitted. Tenderers may not participate individually and simultaneously as part of a temporary joint venture. Any breach of this rule shall result in the automatic rejection of all tenders submitted by that entity.

18.3 Presentation

1. Offers must be submitted in writing, either by hand, courier or fax.
   Fax submissions are permitted only if expressly authorised by the contracting authority and indicated in the call and the general conditions.Tenders must contain all information required for evaluation, particularly the final price proposed and a declaration accepting all conditions of the tender.
2. No corrections of errors will be permitted between the end of the submission period and the award.

18.4 Receipt of offers

The submission period ends on the date and time stated in the contract notice on the Contractor Profile. Delivery may be made as follows:

1. By hand or courier
   Documents must be delivered to the Foundation’s headquarters at: Avenida de Denia, 88 – 2ºA, Alicante.
   Tenders must be submitted in two sealed envelopes, signed by the bidder or their representative, indicating contents, bidder name, contract title, full postal address, telephone and fax numbers, and email if applicable.
2. By post
   The date of posting must be certified by the Post Office, and the contracting authority must be informed the same day via telex, fax or telegram. Without both requirements, late arrivals will not be accepted.
   If the documentation is not received within two days of the posting date, it will not be admitted.
3. By fax
   Permitted only where expressly provided in the general conditions. All offers received before the deadline will be accepted.
   No tender shall be accepted after the deadline, regardless of submission method.

18.5 Opening of offers: Contracting authority

The contracting authority shall receive and open all tenders, either in a private session or a public act.
In the public act, the names of tenderers and their bid amounts will be published on the Foundation’s Contractor Profile.

18.6 Award of contracts

1. A tender will only be considered for award if it meets the participation conditions and essential requirements at the time of opening. If a tender appears abnormally low, the contracting authority may request additional information from the bidder to verify their ability to fulfil the contract.
2. Unless the Foundation decides not to proceed for reasons of foundational interest, the award shall be made to the bidder who: has full capacity to perform the contract, and has submitted the most economically advantageous tender, either by offering the lowest price (if price is the sole criterion), or according to the evaluation criteria established in the general conditions.
3. Award decisions must comply with the criteria set out in the general conditions.
4. Notification may be made via fax or postal address specified in the tender.

If sent by fax, proof of receipt must be provided.

19. PUBLICITY OF CONTRACTS NOT SUBJECT TO HARMONISED REGULATION

1. The Foundation provides, through its website and Contractor Profile, a system for publicising open and ongoing tenders for contracts exceeding €50,000 (excluding VAT).
2. Where decided by the contracting authority, such tenders may also be publicised through press announcements.

20. URGENT PROCEDURE FOR NON-HARMONISED CONTRACTS

If an overriding urgency arises from unforeseeable events not attributable to the Foundation, requiring immediate execution of the contract, the Foundation may—regardless of contract value—request offers from at least three qualified suppliers, whenever possible.

21. FORMALISATION OF CONTRACTS NOT SUBJECT TO HARMONISED REGULATION

1. Unless already included in the tender specifications or conditions document, contracts entered into by the Foundation must include the following:
   1. Identification of the parties.
   2. Proof of the signatories’ capacity to execute the contract.
   3. Definition of the object of the contract.
   4. Reference to applicable legislation.
   5. List of documents forming part of the contract, possibly with hierarchical order for resolving contradictions.
   6. The fixed price or method for determining it.
   7. Contract duration or estimated start and end dates, including possible extensions.
   8. Conditions of receipt, delivery or acceptance of services or works.
   9. Payment conditions.
   10. Grounds for termination.
   11. Budgetary allocation or accounting reference for payment.
   12. Scope and duration of confidentiality obligations.
2. The contractual document may not include stipulations creating rights or obligations different from those in the tender specifications or requirements document.

Approved unanimously in the ordinary session of the Foundation’s Board on 9 July 2010; amended in the ordinary session of 14 June 2012.