Responsabilidad de la administración en la contratación pública

contratos publicos

The liability of the government forces them to compensate the individual who injured, provided that the legal requirements

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This entry is a brief summary of the regulation patrimonial responsibility of management in public procurement.

Legal framework

Article 106.2 of the Spanish Constitution (onwards, EC) establishes responsabilidad patrimonial, It derived from the particular injury or property rights and, except in cases of force majeure.

This article develops in law 40/2015, of 1 October, Legal Regime of the Public Sector (onwards, LRJSP). Also, your claim is carried out by a administrative Procedure.

This implies that the law is applicable 39/2015, of 1 October, Administrative Procedure Common Public Administration (LPACAP), to the extent that it is responsible for regulating the complaint procedure.

Last, comes in the new Law 9/2017, of 8 November, of Public Sector Contracts (onwards, LCSP). The LCSP traspuso (belatedly) called "fourth generation directives" into our legal system. These directives are:

– Directive 2014/23 / EU, European Parliament and Council, of 26 February 2014, on the award of concession contracts.

-Directive 2014/24 / EU, European Parliament and Council, of 26 February 2014, procurement.

– Directive 2014/25 / EU, European Parliament and Council, on procurement by entities operating in the water, energy, transport and postal services.

The transposition of these Directives evidence the weight of Community law on the regulation of management responsibility in public procurement.

Lesions that can be compensated

The LRJSP requires certain requirements damage to wake the right to compensation in the particular injury. These are:

– The damage must be cash, economically assessable and subjectively individualisable.

– Also, be antijuridical, which means that the individual must not have a legal duty to bear.

– The damage must be attributable to the administrative activity, It is requiring demonstrate a causal link between the functioning of public service and the injury.

– As the article 106.2 EC, should not attend force majeure. Nor must attend other exculpatory, as it would be the exclusive fault of the injured.

Special features of the liability in public procurement

Although patrimonial responsibility, and general, It operates substantially identically in all areas of public service, public procurement includes certain peculiarities.

For example, to mediate a contract, the asset and contractual responsibilities by a fine line are separated. In fact, as will be seen, the individual injured by ongoing operations of a public contract makes the contractor may act in the civil order against this or administrative litigation order against the Contracting Authority.

This element makes it particularly recommended specialist intervention when demand management responsibility in public procurement. Roughly, They will be given responsibility these three figures:

– The contractual liability Administration protects poor service contractor. Also, protects the contractor damage that may cause you to the Public Administration for its abnormal operation.

– The tort protects the third of the injuries that cause the contractor during performance of the contract, under the Civil Code.

– The responsabilidad patrimonial protects the third of injuries sustained during direct orders or defects in project management. It also protects the contractor injuries that may result from normal operation of public service.

The concurrence of these three responsibilities difficult to determine the person responsible in these cases, besides choosing the right channel to initiate a claim.

Moments capable of generating liability

The liability of public authorities may be paid on different moments in the life of the contract. You can derive both breach of contract law and the execution of the contract, whenever a damage arises for a third party.

Namely, which may appear compensable injuries both during award phase the contract and during the implementation phase thereof.

Preparation and award

When producing a improper award, It could harm the best positioned bidders. Concurring the characteristics required of the damage to be compensable, in these cases mediate the responsabilidad patrimonial de la Administración.

On the other hand, the measurements of preliminary suspension Bid also undermine the provisional contractor. When an award is declared invalid the best positioned bidders also suffer financial loss, to be assessed as lost profits.

However, It is common for patrimonial responsibility of the Administration to reject the award declared invalid been. For this, is used as an argument that the plaintiff has not shown that, They have continued the validity of the decision annulled, would have been awarded.

Namely: although the liability of the Public Administrations may result from even before award of a public contract, tenderers and bidders will encounter certain evidential difficulties. In the case of injuries resulting from acts of contracts preparations.

Other elements, as seizure of collateral, will be easier to claim. Ultimately, it is able to identify and evaluate the lesion, while a bond of sufficient and adequate causality with the operation of public service trace.

Nor will it be easy to claim responsibility for suspension of the bidding process or contract execution. These assumptions are commonly given as precautionary measures,which can be harmful to successful bidders and tenderers.

The administration has an obligation to weigh the conflicting interests, which will reflect on the reasons for its. However, In these cases it is difficult to prove the concurrence of wrongfulness, since the suspension is a precautionary measure which seeks to protect overriding interests.

Ultimately, in either case it is understood that the mere annulment of the act does not authorize the injured party to claim the liability of the Public Administrations. In addition to this cancellation and consequential damages, should attend the remaining elements of compensable damage.

patrimonial responsibility of the Administration in implementing the contract

During the execution of the contract, Management is responsible for the damages caused by their immediate and direct orders and vices in your project. The main problem in this regard is the distribution of responsibilities between government and contractor.

Why it enabled the injured to require the contracting authority to declare who is responsible for the injury. Obviously, this imputation procedure is subject to judicial control.

Therefore, the contentious-administrative jurisdiction to declare by way of judgment who is responsible for the injury and you, if, allocate quotas of participation in such liability.

It is clear that this imputation of liability assumed the Administration is free from liability under implementation when it has been a contractor who develop the project, provided they do not emit harmful orders.

Imputation of liability in cases of public procurement

The contractor is obliged to respond in damages and damages arising from operations contract performance. This responsibility will be limited by law if such damages were direct and immediate consequence of an administration order or a defect in the project, as it mentioned above.

Third injured have a within one year from production of the wrongdoer to claim the contracting authority. This will hear the contractor and decide on what is the party responsible for such damages.

Exercise this right will interrupt the limitation period Claim action. Also, if the Administration recognize its responsibility, the injured party may seek compensation to a subject highly solvent. Hence, despite having open civil proceedings, This is usually the first step in claiming compensation in such cases.

Responsibility of the contractor

As we say, the contractor responsible for compensation for damages caused to third parties in the course of execution of public contracts. However, the doctrine interpreted in two ways this responsibility of the employer.

Direct action against the Administration

The first interpretive branch argues that Administration must pay compensation to the injured, notwithstanding repeated later against the contractor.

Accordingly, the injured would have a Direct action against the Administration, by which their compensation claim. If the conditions of accountability, the Administration should pay reparation, notwithstanding repeated later against the contractor.

Action after consultation

The second branch interpretative notes that the injured should start procedure aimed at determining the subject responsible for the contracting. If only the responsibility of the Contracting Authority determined, the injured individual could act against it.

According to supporters of this line would not direct action against the Contracting Authority, since before acting would have to determine whether the charge is this or contractor.

Requirement for determining the person responsible

The injured can require the contracting authority to determine who was the subject responsible for the damage. Such request must be made in within one year from the harmful event.

The contracting authority may determine that the injury is responsible for the contractor, Who could challenge such a decision before the Administrative Jurisdiction. This route of challenge is also open to third injured. Contesting that is often used only if the contractor has a questionable solvency.

When the contracting authority confers responsibility to the Contracting Authority, the injured may act directly against it, requiring their liability through the channels of the common administrative procedure (with its peculiarities).

If the contracting authority not to rule, jurisprudence understands that the responsibility should be attributed to the Contracting Authority.

In any case, we must bear in mind that this is an imputation procedure and no claim. Namely, the contracting authority will indicate the subject held responsible, but not necessarily initiate liability claims.

Cases where the contractor is designated as responsible

Where the Contracting Authority points to the contractor responsible, the injured You may proceed against him civilly. In fact, This pathway is open even when no consultation with the contractor Administration.

However, consultation is highly recommended. This is because if it is claimed directly against the contractor and the claim was dismissed in court, most likely he would have prescribed the time to act against the administration. Especially if the matter remained unresolved in the first instance.

Imputation of liability to the Contracting Authority

So when injured proceed directly against the Contracting Authority as when the contracting authority has determined the responsibility of the same, will follow the liability procedure.

This follows the channels of the common administrative procedure, with the features you outlined in LPACAP. As any administrative procedure, is subject to control ordinary jurisdiction over contentious-administrative.

Just as the injured may act directly against the contractor, It can also act directly against the Administration. It will be enough to initiate the administrative procedure for liability of the Public Administrations.

However, as in the previous case, the fact that the ruling that ended Administration is not responsible for injuries, the injured have lost their prescriptive period for the civil claim would have taken the time to resolve the case and, if, the administrative appeal.

Satellite claim

Whereas previously noted, the most recommended when claiming responsibility for damages arising from compliance with procurement route begins request the Contracting Authority to point who considered responsible for damages.

Thereby, the injured may initiate your claim is supported by an administrative declaration. More importantly, prescriptive deadlines will be frozen, de modo que, failing in the route indicated by the Administration, still it will have ample time to find repair on the other track.

La reclamación civil no special peculiarities, outside the contractor can claim attributing the damage to the Administration. For his part, the administrative complaint begins with the use of administrative Procedure of liability. If not satisfied, the injured party may submit his case to the jurisdiction control administrative system.

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