The Supreme Court determines that the competence or management of the public service of water supply to a municipality can be relinquished or delegated to a consortium composed by the Provincial Council and the Town Halls of the municipalities of the province. STS 844/2022, June 29th.
The Supreme Court, in the sentence number 844/2022, June 29th, pronounces itself about the question of if the service of water supply and distribution can be transferred or delegated to a provincial consortium; if this consortium can be considered a form of vertical or horizontal cooperation between public sector entities; and if the adjudication of this public service performed by the consortium can be done through the modification of a previous contract, or if it has to adhere, in any case, to a new adjudication.
The sentence solved the cassation appeal filed by the commercial entity “Aqualia” against the sentence pronounced by the Administrative Disputes Division of the Superior Court of Justice of Extremadura, in the administrative appeal filed against the Resolution of the Legal Commission of Extremadura, by which the special appeal on contracting that the demanding party filed against the Agreement of the Plenary of Villalba de los Barrios’ Town Hall of approval of a convention between the Tow Hall and the consortium “Promedio para la Gestión de Servicios Medioambientales de la provincia de Badajoz” (Promedio) for the provision of the service of water supply was denied.
More specifically, this dispute has its origin in the opposition of “Aqualia” to the fact that the consortium, which gathered the Provincial Council and the Town Halls of the municipalities of the province –among them, the Villalba de los Barrios’ one–, assumed the provision of the service of domiciliary water supply in this municipality, just as it was already doing with the other municipalities of the province.
Indeed, in 2013 it was approved the document of potable water supply downward to twenty-five municipalities of the province of Badajoz, tendered by an open procedure, and awarded to “Aqualia”. Some years later, the Town Hall, which had been directly managing the provision of the public service of potable water supply, allowed to delegate the provision of the service to “Promedio”. With this in mind, the Plenary of the Town Hall approved a convention with the consortium and, immediately, the consortium approved the modification of the contract that had with “Aquanex”, so that it would take care, as well, of the referred service in Villalba de los Barrios.
The Supreme Court solves the appeal filed by the appellant by admitting, on one hand, the possibility that the provision of the service can be transferred to a provincial consortium, given that the provision of this in different town halls of the province constitutes a common interest activity for all of them.
Additionally, it is declared that a consortium can constitute a form of horizontal or vertical cooperation between public sector entities, depending on the specific modality of cooperation, the circumstances and the conditions that coincide in the convention celebrated between these public entities.
On the other hand, in relation to the allotment of this service by a consortium composed by public sector entities, the Supreme Court clarifies that it is subjected to the legislation on public contracts when this allotment is performed through public tender to an external company, as it happens in this case.
Finally, the sentence tackles the issue of if the modification foreseen in the tender specifications of the contract agreed between the consortium and the twenty-five town halls which initially subscribed it, adding one more Town Hall, means “to add complementary provisions” to the water supply of the municipalities, issue that the Court solved by saying that the incorporation of another municipality does not mean to addition complementary provisions which were not initially foreseen in the contract, but to execute the same foreseen provision, but in another town hall; and without that meaning an expansion of the contract object, because the provision to the new Town Hall is exactly the same one planned for the initial municipalities.
