Post by account_disabled on Mar 13, 2024 1:07:23 GMT -5
After the aforementioned resolution was appealed through contentious-administrative proceedings, the appeal was upheld , by means of a Judgment of the TSJ of Extremadura, of October 8, 2021, which annulled the administrative resolution and condemned the Administration of the Autonomous Community of Extremadura to pay the recurring industrial benefit of 6% of the total contract amount.
The company appeals the lower court ruling, understanding DJ USA that “even when the amount of aid is set through a bidding procedure and ends with the signing of a contract, there is no analogical application of provisions established expressly and exclusively. for the field of public procurement , specifically the works contract (article 131.1.b) of the RGCAP), given that we are not dealing with the tender for the provision of a service to a Public Administration, but with aid to the operator by keeping the product stored for a certain period of time in order to correct imbalances in the market, that is, a subsidy that is granted with the obligation to comply with a series of commitments by the beneficiary.
What the appellant company ultimately requested was compensation that would entail full reparation for the damages suffered due to the impossibility of receiving the subsidy for which it had opted.
Purpose of the resource
The Judgment of the TSJ of Extremadura, regarding the compensation requested, argued the following: “In the present case the circumstance is deduced that expenses have been incurred for the execution of the contract but on the basis that it offered a slightly lower price we consider that the purpose of such contract was to obtain an industrial benefit , so that the quantification of the total amount in the contract offered is appropriate, the granting of 6% of industrial benefit, mainly, when the above simply serves to indicate an indicative criterion and it is undoubtedly that the appellant would have had more expenses and the question of general expenses is in relation to a contract and a tender, which may vary but in the end the contractor really pockets the industrial benefit and in the case "The tender price has been lower , so your profit would also be lower and in this way all of this is compensated."
The company appeals the lower court ruling, understanding DJ USA that “even when the amount of aid is set through a bidding procedure and ends with the signing of a contract, there is no analogical application of provisions established expressly and exclusively. for the field of public procurement , specifically the works contract (article 131.1.b) of the RGCAP), given that we are not dealing with the tender for the provision of a service to a Public Administration, but with aid to the operator by keeping the product stored for a certain period of time in order to correct imbalances in the market, that is, a subsidy that is granted with the obligation to comply with a series of commitments by the beneficiary.
What the appellant company ultimately requested was compensation that would entail full reparation for the damages suffered due to the impossibility of receiving the subsidy for which it had opted.
Purpose of the resource
The Judgment of the TSJ of Extremadura, regarding the compensation requested, argued the following: “In the present case the circumstance is deduced that expenses have been incurred for the execution of the contract but on the basis that it offered a slightly lower price we consider that the purpose of such contract was to obtain an industrial benefit , so that the quantification of the total amount in the contract offered is appropriate, the granting of 6% of industrial benefit, mainly, when the above simply serves to indicate an indicative criterion and it is undoubtedly that the appellant would have had more expenses and the question of general expenses is in relation to a contract and a tender, which may vary but in the end the contractor really pockets the industrial benefit and in the case "The tender price has been lower , so your profit would also be lower and in this way all of this is compensated."