The State Public Procurement Advisory Board (JCCPE) has ruled on this issue in its Report 29/2023, of October 26, which resolves a query formulated by the Mieres City Council (Asturias).
As is known, classification is mandatory in works contracts with an estimated value greater than 500,000 euros, replacing solvency.
Public contractual doctrine has traditionally admitted the possibility that bidders could complete solvency with external means, although they have considered it essential that the bidder who intends to integrate his solvency with external means accredit a minimum of solvency with his own means.
The City Council raises two issues that are of great interest from a practical point of view because they affect access to public tenders in which classification is required. On the one hand, if the classification can be fully supplied by external means when the bidder lacks it. And, on the other hand, if it were not possible to supply it in its entirety, whether the bidder should in that case have a minimum classification or would it be sufficient to have a minimum of its own solvency, without classification, and what should it be.
The JCCPE brings up its Report 35/2021, of December 17, in which it analyzed the case that the accumulation of the classifications of the companies that made up a UTE was not sufficient to obtain the required classification and was integrated with the classification obtained by a company that was not part of the UTE, admitting this possibility as long as it is proven that the UTE has the means of that third party that enable it from an economic and technical point of view to execute the contract, as the Court already did. Central Administrative Council of Contractual Resources (TACRC) in its resolutions 791/2016 and 525/2016 by admitting the classification certificate of the group’s parent company along with its declaration, making available to the bidder the means needed for the execution of the contract if awarded.
And the JCCPE Report 35/2021 reached the same conclusion regarding individual entrepreneurs, in which it admitted the integration of solvency through a classification certificate as a works contractor of the entity whose external means were going to integrate the solvency of the individual bidder, accompanied by the commitment to put the necessary means for the execution of the contract at the disposal of the potential successful bidder.
In Report 29/2023, the JCCPE concludes that in contracts in which the classification is required by legal mandate, the classification cannot be fully replaced with external means, and once again brings up what was stated in Report 35/2021 in relation to the UTE, in which it is determined that in contracts in which a certain classification is required, the accumulation of the solvency or classification conditions will occur ex lege between the members of the UTE, so it is unavoidable that all the components of the UTE are classified, except when one of them reaches the classification required in the tender, in which case the accumulation will not be necessary, with the UTE reaching the required classification.
The minimum required classification is not established in either the LCSP or the RGLCAP, therefore, Report 29/2023 states, it will be enough for the bidder to be classified as a works contractor, without prejudice to the possibility of turning to another classified company. to complete the classification required by the specifications[1].
However, we find ourselves with a new contradiction, as it should be noted that Report 9/21, of March 24, 2022, on the application of article 75 of Law 9/2017, of November 8, on public sector contracts , of the Public Procurement Advisory Commission of the Junta de Andalucía, maintains the opposite criterion to that set forth in the recent Report 29/2023 of the JCCPE, given that to the specific questions, in relation to administrative works contracts, whether, for On the one hand, there is the possibility of a contractor registered in the ROLECE, with a minimum classification, but without the classification required in the tender or its own resources, integrating its solvency with external solvency where the total solvency is provided by assignment of means of the external company and, on the other hand, it is possible to tender a company without classification by providing the solvency through external means of a classified company, the Andalusian Public Procurement Advisory Commission concludes that:
«It is legally viable for a company registered in the ROLECE to participate in a tender, with a minimum classification, but without the classification required in the tender or its own resources, integrating its solvency with external solvency where the total solvency is provided by assignment of means. of the external company.
Greater doubts could arise from the second question raised: That is, the possibility of bidding for a company without classification by providing the solvency through external means of a classified company.
In our opinion, the answer must also be affirmative. The classification, according to art. 77 of the LCSP, is nothing more than a form of accreditation of solvency. And we consider it legally permissible for a bidder to integrate his solvency by resorting to external means without the need to prove a minimum of his own solvency, with no further requirement than to demonstrate that he effectively has those means for the execution of the contract.
Without undervaluing the strictly formal aspect that the Andalusian Advisory Commission values, with which we fully agree, the truth is that we find ourselves, once again (and they are already countless), without a univocal statement, what will (or will not) the delight of public procurement operators.