Bans on contracting: the risk that shuts you out of every contract at once
Nextica Law & Tax prevents and defends the costliest issue in public procurement: the bans on contracting in art. 71 of Law 9/2017. A review of the company's and its directors' real position against those grounds, a responsible declaration and ESPD free of inaccuracies, self-cleaning measures —repairing the harm, cooperating and putting controls in place— to evidence reliability, and a compliance programme including the internal reporting channel of Law 2/2023, which is where these matters surface before they become a file.
A final employment or environmental penalty costs more than the fine: it can close off public procurement for years.
What's included
1. Auditing the company's and its directors' real position against the grounds for a ban on contracting, before a tender asks about it.
2. Reviewing final penalties and convictions, and open files that could become final, with their duration.
3. Preparing the responsible declaration and the ESPD so that what is declared is exactly what can be evidenced.
4. Designing self-cleaning measures where a ground has already been incurred
repairing the harm, cooperating with the authorities and putting controls in place, with dates and evidence of application.
5. Implementing the internal reporting channel and the rest of the compliance programme, focused on the risks that actually shut you out of public procurement.
6. Training management and whoever signs the declarations, since they carry responsibility for what is declared.
7. Defending the file if a ban is actually declared, and evidencing restored reliability.
ONE FINAL PENALTY CAN CLOSE OFF ALL PUBLIC PROCUREMENT
A ban on contracting does not affect one contract: it affects every one at once, for however long is determined.
The grounds for a ban reach final convictions and penalties in areas the company does not associate with public procurement —employment, environment, competition— and their effect is exclusion from every procedure.
art. 71 Law 9/2017Self-cleaning is not a formula drafted on the day the file opens
what is assessed is the date of the measures and the evidence that they are applied. A compliance programme launched on receiving the notification convinces nobody.
art. 71 Law 9/2017An internal reporting channel is mandatory from the headcount threshold the rule sets, and also in the situations and sectors it lists regardless of size.
Law 2/2023MOST COMMON CRIMES IN THE BUSINESS FIELD
| Crime | CP Precept | Sectors with the highest exposure |
|---|---|---|
| Crimes against the Public Treasury and Social Security | Art. 305-310 bis | All sectors |
| Money laundering | Art. 301-304 | Financial services, real estate, jewelry, casino |
| Corruption between individuals (bribery) | Art. 286 bis | Pharmaceutical, food, construction, distribution |
| Fraud and misappropriation | Art. 248-254 | Services, technology, finance |
| Crimes against worker safety | Art. 316-317 | Construction, industry, logistics |
| Environmental crimes | Art. 325-331 | Chemical industry, food, agriculture |
| Cyber crimes | Art. 197 bis et seq. | Technology, digital services, telecommunications |
Crimes against the Public Treasury and Social Security
Money laundering
Corruption between individuals (bribery)
Fraud and misappropriation
Crimes against worker safety
Environmental crimes
Cyber crimes
Frequently asked questions
What is self-cleaning and when does it work?
It is the set of measures by which a company shows it remains reliable despite having incurred a ground for exclusion: repairing or compensating the harm caused, actively cooperating with the investigating authorities, and adopting technical, organisational and staffing measures that prevent recurrence —which in practice means a real compliance programme, with controls and a reporting channel that actually works. It is not a formula written on the day the file opens: what convinces is the date of the measures and the evidence that they are applied.
Do I have to declare that I am not subject to a ban?
Yes, at two moments: in the ESPD when submitting the bid, and in the responsible declaration before the award, plus documentary evidence when required. There is a trap worth knowing: inaccurately declaring the information required to verify that you are not subject to a ban is itself a ground for a ban under art. 71 of Law 9/2017. In other words, the mistake in the declaration can end up costing more than the fact you were trying not to mention.
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