Tenders for the management of animal collection, shelter and care are met with indifference from the Administration

By Amparo Requena Marquis, lawyer specializing in animal law and juvenile jurisdiction, member of the Animal Law Section of the ICAV and president of AVADA (Valencian Lawyers in Animal Defense).

It will soon be three years since the entry into force of the long-awaited national animal protection law (which, after leaving hunting dogs and other dogs and animals of specific activities out of the protection, ceased to be so eagerly awaited and represented a regrettable setback in protection) and we continue to find that a very high number of municipalities, on whom the application of the law falls, continue to fail to comply with their legal obligations (identification of animals, decrees on abandonment, control of breeding, control of feline colonies, mandatory training... and many others from an extensive list).

And among so many breaches is the serious problem that arises with tenders (in the Valencian Community, but applicable to the entire national territory) on animal collection management when the City Councils "forget" that, whenever possible, they must contract with solvent animal protection entities.

This preference, included in both state law and the Valencian Community's regional law, is not random. Given that these are laws on animal protection and involve services for the care and attention of abandoned, lost, or confiscated living beings in a particularly vulnerable situation, they require care and attention from people with a vocation and sensitivity that is unlikely to be present in a for-profit business.

Article 22.1 of Law 7/2023: “Municipalities shall be responsible for the collection of stray and abandoned animals and their placement in an animal protection center. To this end, they must have an emergency service for the collection and veterinary care of these animals, available twenty-four hours a day. This service may be provided directly by the competent municipal services or by private entities, without prejudice to the fact that, whenever possible, it will be provided by a private entity.” carried out in collaboration with animal protection organizations "

Statement of reasons for Law 2/2023 (Valencian Community):"…. Thus, the collection, reception and adoption of children is established as the exclusive function of the municipalities, which they may manage themselves or through indirect management formulas of public services through social clauses to entities that foresee the purposes pursued. in this law….”

But in addition to animal protection laws, Law 9/2017 on public sector contracts, applying the UNE 313001:2016 standard on "Animal protection centers and pet boarding facilities. Animal health and welfare management," allows these types of contracts (classified as social, cultural, or health service contracts) under the CPV code for "animal daycare," due to their sensitive nature, to be awarded directly to animal protection organizations that meet quality standards related to animal welfare, through reserved contracts (with the requirements of the law's forty-eighth additional provision). Despite being perfectly valid and admissible, these reserved contracts are ignored by local councils, which instead resort to open tenders.

Even using the general open tendering model, it is also possible to draft "ethical" tender specifications, which require a series of conditions, both in the administrative and technical specifications, aimed at guaranteeing animal protection and welfare and giving significant weight to these requirements in the overall scoring. Among these requirements, it is essential to consider the technical solvency of the bidders, who must demonstrate prior, accredited experience in animal management and collection.

Article 90.1.a) of Law 9/2017: “The technical or professional solvency of entrepreneurs must be assessed taking into account their technical knowledge, efficiency, experience and reliabilitywhich must be proven, depending on the object of the contract, by one or more of the following means, at the choice of the contracting authority: a) A list of the main services or work of the same or similar nature as that which constitutes the object of the contract.... ".

Despite all these legal requirements, the reality is that we find tenders in which local councils draw up specifications that violate animal protection regulations, or even when they do include them, the veracity of the information presented in the bidders' proposals is not verified. (For example, the submission of proposals for zoological facilities that do not meet legal requirements are validated by local councils, and once again, it is animal protection organizations that have to highlight these serious violations).

What do these legal breaches of the tender specifications or the lack of verification of the submitted information mean? It means that a very high number of animal collection, shelter, and care services are falling into the hands of for-profit companies with no experience in animal care, or even worse, with a very negative track record.

Currently, in large cities, we are witnessing an incomprehensible interest on the part of city councils that, despite having tendered for reputable animal protection organizations with long and impeccable track records in animal care, are giving more favorable, and at the very least questionable, consideration to companies whose primary business has, until now, been pest control or the removal of animals deemed a nuisance. These companies lack the minimum professional competence required, having no experience in animal management and care. Some of these companies, despite having experience, have even been administratively sanctioned for failing to meet contract terms, and in some cases, face criminal proceedings for alleged animal abuse stemming from their work in various municipalities across the country.

Given these irregularities, the administration should register in the ROLECE (Official Register of Bidders and Classified Companies of the Public Sector) these irregularities that have been sanctioned after an administrative or judicial procedure, which constitute sufficient grounds to prevent the possibility of contracting and which also serve as an "alert" for the contracting bodies.

Regarding companies facing open criminal proceedings for animal abuse, although there are currently no final judgments and the principle of presumption of innocence could be invoked, it is nonetheless true that, given the considerable number of ongoing proceedings with sufficient evidence and the support of the public prosecutor, the legal concept of "fumus boni iuris," or appearance of good right, should be considered. This would allow for measures to be taken to provisionally prevent these companies from participating in public tenders while the proceedings are resolved. This is not because they are involved in any general criminal or administrative proceedings, but precisely because the charges are for animal abuse, which is completely incompatible with the very purpose of the service. If the contracts are awarded and a final conviction is subsequently handed down, the contract would be nullified, a new tender would have to be issued, and all actions would have to be restarted, resulting in losses for the municipal coffers, in addition to the serious harm to the animals until the tender process is reinstated.

Indifference and a certain hypocrisy from city councils, which boast of being "pet-friendly" with councilors, offices, or departments dedicated to animal welfare, continue to validate these companies and see no conflict of interest in allowing them to assume the care and attention of "their animals" for years. Based on the same presumption of innocence, would they admit a bidder who, for example, was involved in several criminal proceedings for child abuse to manage a daycare center? It's inconceivable that something like that would be allowed... how little the lives of animals matter.

Generally, these types of companies, whose social purpose has always been the elimination of animals, tend to present economic offers that are initially more attractive to the city councils, but if analyzed, they would fall under their own weight: unrealistic and unfeasible prices to fulfill the service.

It's crucial to understand that in these types of contracts, a for-profit organization can never receive monetary or in-kind donations. Nor can it benefit from special rates at veterinary clinics, where animals with complex conditions will necessarily have to be referred. Crucially, they also cannot rely on volunteers (essential for the care and attention of the animals) because, in the case of a for-profit organization, this would be considered free labor—absolutely illegitimate and a violation of labor laws. Undoubtedly, local councils are not taking into account the expenses incurred by these organizations through donations directly allocated to the service, which they will no longer have access to. Therefore, these additional costs will have to be covered by other, unforeseen budget items.

It is deeply concerning that, in terms of minimizing these costs, the macabre coincidence that many of these companies rely on is acknowledged: a very high number of animals that must be euthanized due to "serious, incurable illnesses" or a very high number of "aggressive" animals; compared to the very low, or even nonexistent, numbers of animals handled by animal shelters in these situations. This strange coincidence is occurring in practice amid the indifference of the authorities who fail to monitor the service's implementation.

Furthermore, many of these tenders only cover the collection of dogs, leaving all other abandoned animals, especially cats, completely unprotected. This ignores the many non-community cats that once belonged to families and cannot survive on the streets, as well as injured or sick cats (community or otherwise) requiring veterinary care. This represents another additional cost that must be added to these more attractive bids, and if it is not included in the tender specifications, it will have to be claimed from the local councils.

In conclusion, it is necessary that as a society we do not accept that public money is being used to contract companies whose profits and cost reductions unfortunately involve animal suffering.

The laws are clear, the preambles reflect the evolution of the concept of animals as beings with the capacity to feel and suffer physically and emotionally, and they value the joint work with solvent and professional animal protection entities because they are the ones that can collaborate with the administrations in an absolutely essential, altruistic way and with a single interest which is animal protection.