The open data obligation in the new regulation on public procurement

The recent entry into force of Law 9/2017, of November 8, on Public Sector Contracts last March, has introduced a novelty of great relevance in the Spanish legal system regarding to the reuse of Public sector information. In effect, the aforementioned legal regulation has consolidated the role of the contractor's profile on the Internet as an essential instrument to facilitate access to information regarding the contractual activity of public authorities. Apart from other provisions aimed at reinforcing the content of publications and the accessibility of the information collected there, article 63 of the aforementioned Law requires that all information included in the contractor profile be published "in open and reusable formats". In addition, this content must necessarily be spread through the Public Sector Contracting Platform in the terms of article 347 - the management of this electronic instrument correspond to the General State Administration-.

This is a new advance in the process of transformation of the contractual management carried out by public authorities to be aligned with Open Government parameters. This approach has already started with Law 19/2013, of December 9, on transparency, access to public information and good governance, whose Article 8 requires the dissemination of "all contracts, indicating the purpose, duration, amount of the bidding and the awarding, the procedure used for its conclusion, the instruments to publicize it - if it takes place-, the number of bidders participating in the procedure and the identity of the successful bidder, as well as the amendments to the contract ", in addition to “the decisions of withdrawal and waiver of contracts”. However, this publication refers to a later phase of the contractual process, in such a way that, ultimately, its objective is the accountability related to their decisions and the circumstances in which it takes place.

As is well known, the reform in the area of ​​eGovernment in 2015, was an important step forward, since the use of electronic means in management can ultimately be a boost for increasing the efficiency of public information availability in accordance with the standards that facilitate its reuse.

In this regard, from October 2nd, 2016, all administrative acts must be recorded electronically, unless, by its nature, another more appropriate form could be required, which will undoubtedly be exceptional. This requirement is established not only for functions, but also for any document issued by the Public Administrations, which must also incorporate the minimum required metadata. In this sense, the necessary respect for the National Interoperability Framework already allowed us to affirm that, based on a systematic interpretation of all the aforementioned standards, the document management of Public Administrations should not only be carried out electronically, but also, in accordance with standards that allow the reuse of information.

What, then, is the scope of the new regulation on public procurement in this matter? On the one hand, it has been firmly established -and without, therefore, any interpretation required- that the dissemination of the information to be published in the contractor's profile must necessarily be in open and reusable formats. Consequently, this represents an advance with respect to 2 previous laws:

• The legislation on transparency, which only considers it as a mere preference.
• The legislation on the reuse of public sector information, which simply requires public authorities to ensure access to documents so that they can be reused.

On the other hand, the object of publication in the new contract legislation does not refer only to finalized procedures, as is the case of transparency regulation, but also to those that are being processed at that time or will be initiated in the future. It is, therefore, a measure that aims:

• Promote effective competition in the selection process of companies that aspire to be selected, so the obligation of dissemination in accordance with these requirements becomes an inexcusable obligation.
• Facilitate the audit and, in general, the control of the contracts carried out by the public sector, which undoubtedly is decisively promoted in the contractual field with initiatives and projects based on open and reusable data.

In short, after the presentation of the main novelties of the new legislation on public procurement, a question remains to be answered, what would undoubtedly be the main issue to be raised from the point of view of its practical application: What would happen if a call for bids was published in the contractor's profile without complying with the legal requirements regarding open and reusable data?

Certainly, it could not be said that the legal requirement specifically contemplated in the legislation on public procurement has been ignored (Article 39.1.c of the Law on Public Sector Contracts), since there has been publicized. However, we could find a violation of the general regulation on common administrative procedure (Article 48.2 of Law 39/2015), because the announcement of bidding would lack the essential formal requirements to achieve its purpose; even if there are undeniable publicizing through the legally required instrument, that is, the profile of the contracting party.

In any case, we will have to wait to know the courts’ interpretation of contractual remedies on the scope of the new legal regulation.

Content prepared by Julián Valero, professor at the University of Murcia and Coordinator of the Research Group "Innovation, Law and Technology" (iDerTec).

Contents and points of view expressed in this publication are the exclusive responsibility of its author.