Two questions frequently revolve around the public procurement of legal services: on the one hand, the subjection to Law 9/2017, of November 8, on Public Sector Contracts (LCSP) and, on the other hand, the appropriate award procedure modalities for the selection of the candidate.
Recently, the Advisory Board of Administrative Contracting of Catalonia has issued report 1/2023, dated 19 July on the occasion of several consultations made by the Directorate General of Public Procurement on these two issues.
Regarding the subjection to public procurement rules, the Advisory Board recalls that Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement provides in Article 10 that it does not apply to the “public service contracts” it lists – among which are certain legal services – a justification that has been extended by the Court of Justice of the European Union (CJEU) by referring also to the intuitu personae relationship between the lawyer and his client, characterized by trust, by confidentiality and free choice
On the other hand, according to Article 74 of the same Directive 2014/24/EU, certain legal services – listed in Annex XIV by reference to CPV 79100000-5 to 79140000-7 and 75231100-5, including legal advice and representation services, legal advisory services, legal representation services and services for the representation of interested parties, among others -,8 provided that they are not excluded under the aforementioned Article 10. d and when they have a value equal to or greater than €750,000, are awarded in accordance with the special procurement regime established by the Directive itself.
The provisions of said Directive regarding the procurement regime for legal services were transposed into the Spanish legal system, on the one hand, by Law 9/2017, of November 8, on Public Sector Contracts (LCSP), establishing a different scheme, of which the Advisory Board highlights that it was not subject to debate or amendment in its parliamentary processing, and, on the other hand, through Royal Decree-Law 3/2020, of February 4, 2020, on urgent measures transposing into Spanish law various directives of the European Union in the field of public procurement in certain sectors.
The LCSP only includes in the section relating to “excluded businesses and contracts” – Article 11.3 – from its scope of application contracts relating to arbitration and conciliation services, among all the legal services that the Directive allows Member States not to subject to the rules on the award of public contracts. And, on the other hand, whatever their estimated value, the legal services listed in Article 19.2 (e) are not considered to be contracts subject to harmonized regulation.
The Catalan Advisory Board points out that the state legislator has chosen not to exclude legal services from the scope of application of the LCSP and only consider them not subject to harmonized regulation given their exclusion from Directive 24/2014/EU.
And it highlights that “it is the circumstance that, according to Spanish contract law, two types of legal services have the same legal regime, subject to the LCSP without being considered harmonized, although both are excluded from the scope of application of the Directive, one for its special characteristics and the other simply for its lack of cross-border interest”.
Thus, the report points out that the same regime applies to legal services of legal representation of a client by a lawyer or solicitor in arbitration, conciliation or judicial proceedings and those whose purpose is to provide legal advice by a lawyer in preparation for one of the aforementioned proceedings or when there is a high probability that the matter on which advice is given will be the subject of these proceedings, for which the Directive considers that the selection “is not governed by procurement rules”, also taking into account the intuitu personae relationship between the lawyer and his client, characterized by trust and confidentiality; as well as, on the other hand, legal advice and representation services other than those which, having a value of less than 750. 750,000, are not of cross-border interest.
On the other hand – the report adds – Royal Decree-Law 3/2020, applicable when the activity is carried out in the so-called “excluded sectors” – water, gas and heating, electricity, transport services, ports and airports, postal services, exploration and extraction of oil, gas, coal and other solid fuels – excludes legal services from its scope of application in the same terms as the Directive (Article 20. c) – although it refers to representation and defense by a lawyer or by a procurator, whereas the Directive refers to representation by a lawyer; and encompasses Member States and third countries in the single term state, as is also done in Article 19.2 of the LCSP transcribed above.
And it also provides several specialties for certain services provided in Annex I, which are the same as those set out in Annex IV of the LCSP and which include legal services other than those in Article 20.c, when they have a value equal to or greater than €1,000,000, such as, for example, that the criteria related to quality must represent at least 51 percent of the score assignable in the evaluation of the bids.
According to the Advisory Board of Catalonia, the LCSP cannot be interpreted as excluding the aforementioned service contracts from its scope of application, since the legislator’s decision to transpose the possibility given by the Community legislator by exempting them only from the application of the requirements of contracts subject to harmonized regulation, insofar as they are not considered as such, has been clear.
Secondly, as regards the appropriate awarding procedures for contracting legal services, the special characteristics of trust and confidentiality of certain legal services, highlighted by the CJEU in the judgment of 6 June 2019 (Case C-264/18), should be taken into account in the configuration of the contracts to be carried out, taking into account the confidentiality of the relationship between the lawyer and his client.
And minor contracting could also be appropriate, with the characteristics and limits of these contracts, if it is to cover a specific and specific need, which is not of a recurring nature and which could not have been planned in such a way that it could have been contracted grouped with others.
The configuration of the procurements to be carried out must take into account, on the one hand, the need to specify the required solvency that is adequate to guarantee the technical capacity, referring to the experience that accredits the necessary knowledge and skills in the matter or matters that are the object of the contract, which, as is known, must be in any case proportionate and adequate to the object of the contract.
Regarding the award criteria, it recalls what was expressed by the CJEU in the Judgment of June 6, 2019, in relation to the fact that the “intuitu personae relationship between the lawyer and his client, characterized by the free choice of his advocate and the relationship of trust that binds the client to his lawyer makes it difficult to objectively describe the expected quality of the services to be provided”.
It also considers the award criterion relating to experience in the defense of a public administration to be particularly suitable for these contracts, which in the words of the TACRC – resolution no. 244/2021, of March 5 – “implies a mechanism for comparative evaluation of the bids submitted that falls within the scope of the discretion of the contracting body when drafting the specifications”.
On the other hand, he also points out that the LCSP has not included the provision, contained in the TRLCSP, that the contracts for the legal and judicial defense of the Administration should have “the necessary duration to adequately meet its needs”.
With regard to payment, it points out the feasibility and advisability of providing for a system of payment by results in these contracts, so that the price consists of a percentage of the result of the process.
Finally, the report calls on the legislator -whether the State or the Autonomous Community- competent in the transposition and deployment of Community law on public procurement, to regulate the necessary specialties given the distinctive characteristics of these services, mainly trust and confidentiality, which discourage the application without nuances of the public procurement regulations.