«The Xàbia City Council fails to comply with the Public Sector Contracts Law (LCSP)»

OPINION We can Xàbia

In a recent contracting document for services, the Javea Town Hall (PP, Vox y Ciudadanos The municipality of Jávea is tendering for the services of six bricklayers for the "maintenance, upkeep, and repair of sidewalks," for an amount of €320.601,60/year (2 years + another 2-year extension, totaling €1.059.840). A brilliant idea to maintain, upkeep, and repair sidewalks—and bike lanes!—of which... We can Xàbia is totally in favor.

Damage to a sidewalk

The problem here is mainly that it is not about hiring a service, but about hiring personnel. Why do we say this? Because there are several indicators in the document that give it away:

In addition to the execution period, amount, award criteria and other sections of any tender document, service tender documents must describe the tasks to be performed, the deadlines, the conditions under which the work must be carried out, the special requirements, the essential conditions of the service, the consequences if these conditions are not met, and the order delivery mechanism. work and control of its execution, etc. In the published text, these aspects are barely addressed.

This document provides an excellent description of the work to be carried out, but then the essential conditions for the execution of these works are not specified (it is said that the work must be carried out to the satisfaction of the technical management, without specifying how to evaluate that satisfaction). nor what would happen if the quality of the work was not as expected.

Price is the only award criterion; as if a service to be performed did not have other elements of judgment (quality, compliance with deadlines, quick attention to actions, appropriate schedules to prevent the impact on passers-by as much as possible, etc.).

On the other hand, a very specific workforce is requested, which is available at the same time as the municipal works brigade and which works under its orders and with the City Hall's technology, that is, hiring personnel.

That's what you're really looking for. That is why there is no talk of penalties for failing to comply with essential conditions of the service, that is why the price is the only award criterion, that is why the materials are provided by the Town Hall (except hand tools).

And the problem is that the Public Sector Contracts Law (LCSP) in its article 308 section 2 expressly prohibits this: «In no case may the contracting entity implement the hiring of personnel through the service contract. . .»

We are surprised that the intervention of the city council has inspected the file accordingly and has not raised any objections; nor in an error that says "The unit price of personnel, which includes all expenses, taxes, licenses and any others that may be applicable, except VAT, set for the masonry officer is €23/hour ( NINETEEN EUROS) (sic!).

We are also surprised that the opposition parties have not denounced this blatant attempt to violate the LCSP, especially since PSOE He has been governing in Xàbia for 3 terms and is assumed to have experience in administrative procedures.

Apart from these serious – if not illegal – deficiencies, the tender implicitly excludes member Local: Which local company (of which there are many in construction) can afford to let go of 6 qualified officers by taking them away from its business for 4 years?

One of the missions of a municipal corporation is to promote local activity, and with specifications like this, which require numerous and qualified resources, the only alternative to local companies would be the creation of a joint venture, but there is no crop of this type of alliance in our municipality, and the tender does not favor it either.

At Podem Xàbia we agree with the need to adapt our infrastructure and we also know that the City Council does not have enough staff; Podem Xàbia has been denouncing this situation in recent years (local police, budget execution, etc.), but the solution cannot be by twisting the Law.

There are alternatives that can resolve this situation that are neither more complex to process nor more economically or temporally expensive:

• Hire permanent staff. As this is not immediate, in the meantime create a job pool for different professions, so that the construction brigade can draw from this pool in the face of the demand for personnel, what is called temporary interim personnel.
• Draft a realistic service specification, with specific tasks and other characteristics of the service, or better yet, draft a works specification with its report, project, etc., which is what would be needed to repair sidewalks; identifying specific tasks, budgeted in terms of resources and time to be used, managed by the works brigade, with priority given to the activities, without requiring specific qualifications from the workers, since it would be the company's prerogative and responsibility to carry out the work with quality and within the stipulated time; with penalties associated with any deficiency in the execution (meeting deadlines, quality of the repair, cleaning, debris removal, job security, warranty of repairs, etc.) and with periodic performance reports that allow the activity to be managed.
  And also, with several lots, so that local companies can apply for one of the lots based on capacity and business volume.
• Prepare a framework agreement; So the city council scales the companies that have applied and commissions small works based on the offer presented by the companies that have passed the scale.
• Abbreviated simplified procedure, regulated in article 159.6 of the LCSP and that allows small works to be commissioned (up to €80.000) in very short processing times.

We support the intention to make a shock plan for the repair of sidewalks. It would be great if it were done through one of the contracting mechanisms suggested here so that legality is also complied with and to avoid possible challenges from those affected.