Problems are piling up for the new city government under the leadership of the socialist Jaume Collboni. A few days ago, a court ruling against the pedestrian zone on Consell-de-Cent Street put the community team in distress. It was a project that had cost the people of Barcelona more than 40 million euros, but the way it was carried out, bypassing all legal norms, led to an unprecedented legal setback. Ada Colau’s government was questionable, as were the methods used complete disregard for the law.
But it is not the only gap that the unique former mayor has left for her successor: the Catalan Court of Public Sector Contracts has just left a gap also canceled another million-dollar competition. This is the contract of a Grocery delivery service whose processing began in the summer of 2022. The contract amount was practically 22.8 million euros. Once again the judge’s decision comes when the service was provided, but it is clear that the arbitrary conditions that municipal officials placed in their conditions did not comply with the law. The logical consequence should be the repetition of the competition question that remains open for now.
A controversial clause
The company Serunion He went to court over the terms of the contract. The basics of the technical clauses stated that “the successful tenderer must commit to logistics in which the distance between the address of the central kitchen where the meals are prepared and the headquarters of the Institut Municipal de Serveis Socials (IMSS) on Valencia Street in Barcelona, Does not exceed 100 kilometers. The shortest route indicated by the Michelin guide applies as a reference.” Another clause in the administrative document once again points out this distance between the kitchen and users. “Your offer must indicate the physical location of the central kitchen and, if any, possible food processing centers in the intermediate process between its preparation and final distribution. The shortest route indicated by the Michelin guide is used as a reference. This obligation is a material obligation and failure to comply may result in penalties or termination of the contract.”
Serunión argued that The clause violates “the principles of public procurement”. In their defense, the city technicians cited climate change and, in the absence of concrete data from Barcelona, provided the court with European data on air pollution. And what was the Council’s excuse for including a clause like that mentioned? “The Barcelona City Council has been working on this for years Minimizing the environmental impact of municipal services, because: Air pollution has a significant impact on the health of the citizens of metropolises, and air pollution is directly responsible for more than 500,000 premature deaths in Europe every year.”
GOALS OF AGENDA 2030
In this sense, last March the city council published a report which stated: “One of the main objectives is to reduce pollution, maintain and improve air quality and public health by, among other things, implementing reduction measures within 15 years.” 30% of pollutant emissions, mainly nitrogen dioxide (NO2) and suspended particles (PM10), into the atmosphere.”
It also stated: “The specifications of this tender increase sustainability by including an automatic evaluation criterion for the use of sustainable consumer goods (from organic farming, short-term and direct sales, differentiated quality food and/or fair trade). With the aforementioned objective, the specifications of this tender reduce the number of weekly deliveries and allow the control of the minimum stay time of each user at home, ensuring the social monitoring of their status. Therefore, he concluded that the measure of Limit mileage To achieve results “in the application of the above instructions as well as in the fulfillment of the various Sustainable Development Goals (SDGs) of the 2030 Agenda of the Barcelona City Council.”
In short, he appealed to the “Implementation of the green and circular economy in public procurement processes”, as the intention was “to collaborate in reducing the environmental footprint between different suppliers and traders, thereby increasing the sustainability of the service”. In passing, he argued that a distant kitchen could affect the quality of urgent deliveries, cause problems in meeting schedules, or require his employees to travel more than 100 kilometers, which would result in increased occupational risk.
A rigid sentence
The judgment states: “On the question of territoriality clauses, it is necessary to address the prevailing doctrine in the framework of Community jurisprudence, which postulates the prohibition of any discrimination against tendered companies based on their geographical origin or location, whether as a …” solvency criterion or as an award criterion.” There are several judgments on the illegality of these territorial restrictions, although it is acknowledged that administrative theory “has shown the need, in the face of any restriction on free competition based directly or indirectly on the so-called ‘territorial rootedness’, especially “To be a guarantor.” ‘, largely and in a necessarily restrictive interpretation being permitted within the terms of the contract.” It must therefore ensure that the clauses “are not directly or indirectly discriminatory”. The doctrine also spoke out against the admission of these clauses “as a solvency criterion or admission to tender”.
The judgment admits Serunión’s challenge and states that “it can be confirmed from both the jurisprudence and the doctrine of the treaty courts that the criteria for territorial roots, regardless of how they are established, take into account the exceptional nature “If they have an impact on the principle of free competition, they must be defined and justified by the nature, subject matter and requirements of the contract and always with the view that there is no more suitable alternative to achieve the objective pursued. It states that the city council’s request is neither coherent nor proportionate and “does not justify the suitability and opportunity of this specific sustainable measure”. The blow is harder when the court finds that the determination of 100 kilometers is not justified, “recalling in any case that this parameter must also be motivated and that motivation is what distinguishes discretionary decisions from arbitrary ones.” A complete one Defining how the municipal team works.
