«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 and Ciudadanos por Jávea) is putting out to tender the service of six masonry officers for the "maintenance, conservation and repair of sidewalks", for an amount of €320.601,60/year (2 years + another 2 years of extension, total 1.059.840,-). Great idea to maintain, conserve and repair sidewalks - and bike lanes! -, of which Podem 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 specifications, the service specifications must describe the tasks to be performed, the deadlines, the conditions under which the work must be executed, the special requirements, the essential conditions of the service, the consequences if these conditions are not met, the mechanism for delivery of work orders and control of their execution, etc. In the published text, these aspects are barely discussed.

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 City Council provides the materials (except for 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 crude attempt to violate the LCSP, even though the PSOE has been governing in Xàbia for 3 terms and is supposed to have experience in administrative processing.

Apart from these serious – if not illegal – deficiencies, the specifications implicitly exclude local companies: What local company (of which there are many in construction) can do without 6 qualified officials to detract them from their activity for 4 years?

One of the missions of a municipal corporation is to promote local activity and with specifications like this, where numerous and qualified resources are required, the only alternative to local companies would be the creation of a UTE (temporary union of companies), but not There is a culture of this type of alliance in our municipality, and the document 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.
• Write a real service document, with specific tasks and the rest of the characteristics of a service, or better, write a work document with its report, project, etc. What would it take to repair sidewalks? identifying specific jobs, valued in terms of resources and time to be used, managed by the works brigade, with priority in the activities, without requiring specific qualifications from the workers, since it would be the power of the company and its responsibility to carry out the work with quality and within the stipulated period; with penalties associated with any deficiency in execution (meeting deadline, quality of repair, cleaning, debris removal, job security, guarantee of repairs, etc.) and with periodic execution 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.