Eneko Iceta
PÚBLICO
The Spanish Public Sector Contracts Law (LCSP) is based on the principles of free access to tenders, publicity, transparency of procedures, and non-discrimination and equal treatment among bidders.
However, the legal system provides mechanisms for situations of extreme urgency. Among them, the emergency procedure—regulated in Article 120—is the most powerful tool and, at the same time, the one most likely to undermine the guarantees governing public procurement.
Unlike the urgent procedure, where deadlines are simply reduced by half, the emergency procedure allows the Administration to act immediately, dispensing with the prior preparation of an administrative file.
This power, designed for disasters, situations involving serious danger, or needs affecting national defence, grants a level of technical discretion which, if not exercised rigorously, may become a way to circumvent the controls imposed by the LCSP.
For this reason, contracting authorities must use this procedure only on an exceptional basis. It enables them to order whatever is necessary to remedy the situation or to contract freely, in whole or in part, without adhering to the formal requirements established by the LCSP.
It is precisely this absence of a formal administrative file that gives rise to the greatest risk of breaching the principles of transparency and equality.
As there is no obligation to publish tender specifications or open a competitive bidding process, the Administration directly selects the contractor.
Although this procedure should be strictly limited to what is essential to prevent or remedy the damage caused by an emergency, in practice there is a risk of extending the scope of the contract to actions that could have been handled through ordinary or urgent procedures.
Moreover, due to the structure of the LCSP, there is a fine line between the urgent procedure (Article 119) and the emergency procedure.
One of the most significant points of contention in choosing between them is the concept of an “unforeseeable event”.
The emergency procedure cannot be used to compensate for a lack of planning or administrative organisation. It must be reserved exclusively for exceptional situations, preventing it from becoming a mechanism to cover deficiencies in ordinary management.
One of its main effects is the lack of competition. By allowing the Administration to contract “freely”, competition between companies is effectively eliminated.
This absence of competitive tendering may result in higher-than-market costs, as there is no comparison of bids to ensure economic efficiency.
Furthermore, this procedure implies the absence of prior financial oversight by auditing bodies. Since expenditure is not reviewed before the obligation is incurred, the preventive economic control that should govern public spending is significantly weakened.
Finally, deferred publicity represents another significant risk. Although the law requires reporting to the Council of Ministers or the relevant governing body and publication in the Contractor Profile, these actions take place only after the commitment has already been made and the works or services are underway, thereby limiting transparency in the initial stages.
To prevent the emergency procedure from becoming the norm rather than the exception, case law has established that Article 120 of the LCSP must be interpreted restrictively. A situation of convenience or general interest is not sufficient; there must be a direct causal link between the catastrophic event and the contracted service.
Any excess in the scope of the contract—that is, carrying out works or services that are not strictly necessary to address the critical situation—constitutes a legal infringement that could invalidate the procedure.
In this sense, the emergency procedure is not a “blank cheque” to bypass the guarantees of the LCSP, but rather a temporary and limited exception that must end as soon as the imminent danger ceases.
In conclusion, although the emergency procedure is a vital tool for administrative agility in times of crisis, its use must be subject to strict oversight by supervisory bodies.
The challenge lies in ensuring that this exceptional mechanism does not become a strategy to avoid free competition and transparency—cornerstones of the integrity of public procurement in Spain.
