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Section 145 of the Spanish Public Sector Contracts Act (Ley de Contratos del Sector Público) establishes that “In agreements regarding provision of services of intellectual nature such as engineering and architecture services (…), the price cannot be the only determining factor for the award.” The rule adds that “in the service agreements listed in Annex IV and those agreements on provision of services of intellectual nature, the quality-related criteria must represent at least 51% of the score assigned in the bids assessment.” Additional provision 41 of the Public Sector Contracts Act recognizes “architecture, engineering, consulting and urban development” as intellectual services.
Under those rules, the engineering business association TECNIBERIA appealed the contracting procedure titled “Technical project management assistance for the remodeling and extension project of the Dique Sur building at Barcelona-El Prat Airport, procedure DIN 15/18,” which AENA S.M.E., S.A. (AENA) had tendered by electronic auction. In TECNIBERIA’s view, since the object of the procedure was intellectual creations, the use of the electronic auction prevented the consideration of the qualitative criteria of the bids.
AENA based its argument on the non-intellectual nature of the provision of a project management contract and the over thirty tasks contained in the technical specifications of the procedure in question.
On June 1, 2018, the Central Administrative Contractual Appeals Court (TACRC) sided with AENA, and the Spanish High Court did likewise, dismissing the judicial review appeal against the TACRC’s resolution in its judgment of June 25, 2019.
The Spanish High Court analyzed the object of the provision and, in particular, whether its nature was intellectual, applying the First Chamber of the Supreme Court’s interpretation of the concept of intellectual provision. The Supreme Court based its interpretation on the concept of objective originality, which requires a creative activity that gives the product an innovative nature and makes it possible to distinguish it from other preexisting products.
The Spanish High Court cited Supreme Court judgment no. 253/2017, of April 26, of the , which states, with respect to architectural works, that “Granting the protection that the intellectual property regulations offer authors, both in moral rights and in rights of economic exploitation, to those who plan ordinary buildings without the slightest unique or distinctive feature not only is not aligned with the sense and purpose of the regulations on intellectual property but would also entail disturbing consequences for the owner of the building, because of its functional nature, intended to meet the needs of its owner at any given time, whose rights must coexist with the author’s rights, such as, for example, the moral right to the integrity of their work.”
Spanish case law has pivoted from a conception historically more predisposed towards subjective originality, which protects those creations that pertain to their author, to the current conception, more favorable towards objective originality, which requires the creation to be objectively different.
However, the Supreme Court has not followed a uniform criterion, as the often contradictory rulings show. By way of example, in Supreme Court judgment no. 429/2002, of May 13, the Supreme Court ruled that job advertisements published in a newspaper entailed a significant creative effort to make the offer attractive and, subsequently, in the Supreme Court judgment of November 26, 2003, it ruled that a tourist guide could not be protected by intellectual property because the way in which the monuments were referred to was descriptive, with elements that were part of the common acquis, which cannot be appropriated.
It seems that the current criterion is stricter with respect to the originality requirement, i.e., the susceptibility of copyright protection (see Supreme Court judgment no. 214/2011, of April 5, which considered a set of photographs as mere photographs as they lacked sufficient originality, and Supreme Court judgment no. 64/2017, which ruled that a catalog of DIY products did not constitute a work of intellectual property).
The Spanish High Court states that, although it is “undeniable that intellective human functions take part, to a greater or lesser degree, in all service provisions,” it cannot be concluded that engineering, architecture and consulting work is always a provision of an intellectual nature. In so doing, it stated that elements of innovation and creativity susceptible to being protected by the Spanish Intellectual Property Act (Ley de Propiedad Intelectual) must be present.
Finally, it highlighted that “intellectual creation” should not be confused with a mere intellective activity. Otherwise, this would lead to “protecting any intellective activity, regardless of whether it generates an innovative activity.” In this regard, it cited judgment no. 253/2017 again, which states that “a project, particularly of this size, was creative given its nature, creativity that complies with sections 5.1 and 10 [Consolidated Text of the Spanish Intellectual Property Act ]” is not correct. Not all architectural projects are in themselves creative, and the fact that the building is larger or smaller, or is used as a hotel, does not presuppose that creativity. Not all architectural projects or all buildings are original works protected by intellectual property” (emphasis added).
In view of the above, the Spanish High Court concluded that, although the procedure in question includes certain intellectual aspects, the nature of original work as interpreted by the Supreme Court in its case law does not prevail; therefore, the use of an electronic auction for public procurement is aligned with law.
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