Public Procurement Procedures: Open, Restricted, Negotiated and Minor

1. Why the choice of procedure is the first critical decision

The choice of procedure determines everything that follows: publication deadlines, solvency requirements, admissible award criteria, composition of the tender committee and the possibility (or not) of negotiating with tenderers. It is the first legal decision of the file and the one that most conditions the rest.

An error here is not recoverable by a simple correction: if a contract that should have been awarded by open procedure is processed by negotiated without publication, the file is null and void for infringement of the principle of competition (art. 39 LCSP).

2. Regulatory framework: art. 131 LCSP onwards

Article 131 LCSP establishes the closed catalogue of award procedures. The general rule is clear: contracts are to be awarded by open or restricted procedure; the other procedures are exceptional and apply only in the cases exhaustively set out in the law itself.

To this list is added the minor contract under art. 118 LCSP, which is not strictly an award procedure but an exceptional figure with simplified processing for low-value contracts.

3. Open procedure (arts. 156-158): the default procedure

In the open procedure, any interested economic operator may submit a tender, without a prior selection phase. It is the procedure that best guarantees the principles of competition, transparency and equal treatment.

Minimum deadlines: 35 days from publication for harmonised contracts; 15 days for non-harmonised works and 15 days for non-harmonised services and supplies.

4. Simplified open procedure (art. 159): reduced thresholds and deadlines

Introduced by LCSP 2017, the simplified open procedure is one of the most useful figures for councils. It applies to works below EUR 2,000,000 and to services and supplies below EUR 140,000 (thresholds excluding VAT, reviewed periodically by the EU). It requires award criteria to be quantifiable by formulae.

Advantages: deadline reduced to 20 days (15 for works), mandatory ROLECE registration as solvency requirement and generally more agile processing.

There is also a "summary" variant under art. 159.6 for works below EUR 80,000 and services/supplies below EUR 60,000, with even lighter processing.

5. Restricted procedure (arts. 160-165)

The restricted procedure includes a prior candidate selection phase: only pre-selected candidates may submit a bid. Art. 162 LCSP requires inviting at least 5 candidates.

6. Negotiated procedure (arts. 166-171)

This procedure allows the contracting body to negotiate contract conditions with tenderers. Two modalities exist: with publication (general rule after LCSP 2017) and without publication (exhaustive grounds in art. 168).

Art. 167 grounds (with publication) include: contracts whose needs cannot be met with available solutions, contracts including a project or innovative solutions, and contracts with complex services of intellectual nature.

Art. 168 grounds (without publication) are very restrictive: technical or artistic exclusivity, imperative urgency not attributable to the body, previous procedure declared void without substantial modification, and some specific supply scenarios.

7. Competitive dialogue (arts. 172-175)

Exceptional procedure for particularly complex contracts where the contracting body cannot define in advance the technical means or the optimal financial-legal structure. Typical in major infrastructures or innovative ICT projects.

It comprises a dialogue phase with selected candidates to define the solution, followed by a final tender submission phase. It is a complex procedure and not very common in local administration.

8. Innovation partnership (arts. 177-182)

Figure introduced to foster innovation public procurement. It is used when the contracting body's need cannot be met with solutions existing in the market and requires specific development.

The procedure structures the relationship between administration and successful bidder in two phases: a research and development phase with partial deliverables, followed by the acquisition of the results. Its use is very minority but progressively growing in fields such as smart city and healthcare.

9. Minor contract (art. 118): when it is possible

The minor contract allows direct award of low-value contracts with very simplified processing. Thresholds: under EUR 40,000 for works and under EUR 15,000 for services and supplies (both excluding VAT).

Art. 118.3 requirements: report from the contracting body motivating the need, that the contractor has not cumulatively exceeded those amounts with the same body during the budgetary year, and approval of the expenditure with incorporation of the relevant invoice.

10. Decision tree: how to choose the right procedure

Practical sequence of questions to choose the procedure:

11. Common errors in procedure choice

Error 1: Resorting to negotiated without publication when the exhaustive grounds of art. 168 do not concur. "Imperative urgency" must be objectively evidenced and not attributable to the body.

Error 2: Splitting a contract into several minor ones to avoid the open procedure. It is the irregularity most sanctioned by OIRESCON.

Error 3: Using the simplified open with award criteria dependent on judgement in a higher proportion than allowed.

Error 4: Not properly motivating in the Justificatory Report the choice of procedure when it is not the default open.

Specialised AI tools like LicitadIA incorporate a guided decision tree that suggests the right procedure from the amount, object and technical needs of the contract, and draft the Justificatory Report with express motivation for the choice. Final responsibility still lies with the signing officer, but automatic validation reduces the risk of error. You can request a free demo to see it applied to the usual contract types in your organisation.

Frequently asked questions