Collecting stray animals, managing feline colonies and public procurement: 15 common errors

1. Population management  Animal welfare begins with responsible ownership, which in turn represents the commitment of both individuals and society. Thousands of street animals suffer greatly from uncontrolled reproduction and the lack of proper veterinary attention, to which would be added ignorance, contempt, public inaction and even persecution. The strategy of killing healthy animals, on the street or in shelters, apparently brings a rapid decrease in numbers with possible electoral returns for politicians. 

However, supranational bodies such as European Commission or World Organisation for Animal Health (OIE) have officially rejected this temporary fix that is neither effective nor sustainable.

The solution to excessive animal numbers, mainly due to human irresponsibility, is found in a combination of measures thank link commitment, teams and budget lines of the public administrations:

  • Veterinary vaccination and prevention 
  • Neutering
  • Identification and registration
  • Public awareness and training
  • Penalties and re-education for offenders

2. Domestic animal nurseries and not pounds   The decree on epizootic diseases approved in 1955 established the killing of stray animals within 24 h. after capture. In 2020 it is not admissible the use of concepts drawn from a regulation that has not been adjusted to present national and international context or the changes that Spanish society has undergone in the last 65 years.  

Thus, regional animal protection laws go beyond collecting animals and refer to admittance/acogida (Catalunya, Comunitat Valenciana, Galicia, Illes Balears, La Rioja and Navarra); shelter and boarding/albergue y alojamiento (Canarias), boarding/alojamiento (Castilla-La Mancha, Castilla y León, así como Extremadura); custody and care/guarda y cuidado (Asturias); keeping and care/ mantenimiento y cuidado (Aragón); o refuge/refugio (Andalucía y Murcia). 

Therefore, the classification most in line with current legislation on animal protection for the service of collection, transport, temporary shelter and fostering adoption of companion animals is “cpv 85210000-3, Domestic animal nurseries”, part of Veterinary services, according to the European Union (EU) classification system.

3. Trap, neuter and return (TNR) of feline colonies  A method for managing street cat populations that together with their identification and census are municipal matters. The legal basis is found in the local attribution bylaw -protection of animals, the environment and public health- and the animal protection laws in Ceuta or regions such as Galicia, Madrid or Murcia.

The Council of State of Spain referred in its opinion 865/2014 to “the well-known control system for urban cat colonies known as TNR (Trap-neuter-return)(…) a scientific methodology based on those three concepts (…) The TNR is what it is, and it works, if applied well, very effectively, so it must be maintained in its three phases”

4. Which Public Administration is responsible for stray animals?  Since the 1928 “Local Patronage for the protection of animals and plants” it is a responsibility that falls on towns – to a lesser extent to commonwealths/mancomunidades and provincial councils- in accordance with national and regional regulations of Spain.

The inspection and sanctioning powers for animal abuse and abandonment are also local competences with some exceptions like the Region of Murcia where they are shared between local and regional authorities.

5. Ignorance of mandatory conditions and how the service is really provided  It is essential that the Administration knows in advance the work protocols for each process (collection, transport, reception, triage, quarantine, shelter, veterinary care, departure, etc.), internal and external personnel, documentation to be used or data for collection, as well as costs. 

The enclosures that house the animals must comply with harmlessness, comfort, and safety conditions, where as construction materials have requirements regarding isolation, contamination, disinfection, disinsection, impermeability, cleanliness, resistance to both the animals themselves and chemical products and sanitation.  In addition, the enclosures must have different areas that fulfil different functions such as quarantine, accommodation, sanitation of animals and objects, storage of food and carcasses, etc.

Beyond those hygienic-sanitary and safety conditions established by regulations, animal shelters must cover the physiological, ethological and social needs of animals such as: daily food and free access to fresh water; daily monitoring of each animal (health status, food, drink, urine, feces, behavior, etc.); daily rest, education, exercise and socialisation; stress reduction and prevention of behavioural disorders; and environmental enrichment. 

Likewise, every town must effectively exercise its functions of control, inspection, inspection and assessment of obligations and responsibilities that provision of all public services entails.

6. Are we using public contracts or covenants? The second article of public procurement law includes in its scope onerous contracts -where the contractor obtains, directly or indirectly, an economic benefit-, regardless of their legal nature, concluded by any entity in the public sector. The common vocabulary of EU public contracts determines which benefits are the subject of such public procurement. Thus, a public contract is to govern the service for collecting stray animals.

The law excludes covenants whose content is not included in contracts regulated by the same law or special administrative regulations, as well as the provision of social services by private entities, without the need to enter into a public contract, by simply financing such services. 

Some experts defend the relevance of the covenant in a direct award, without advertising, to voluntary associations as long as the activity contributes to a social purpose and to objectives of solidarity and budgetary efficiency (see decisions of the Court of Justice of the EU such as Spezzino C-113/13 and Casta C-50/14 on the use of covenants for the provision of health transport services). According to the doctrine of Spanish administrative courts, the use of covenants, widely employed in the past, has been replaced by the reservation of contracts to certain non-profit entities.

7. Lead the change and walk the walk  The strategic role of public procurement as a tool to promote in social, environmental, innovation and development policy goals, both national and EU, is unknown (see the Europe 2020 Strategy). 

8. The staff, according to the collective agreement  Labor costs that constitute the main economic cost imply the consideration of the economic terms of the sectoral, national, regional or provincial collective agreement applicable in the place of provision of services.

After a long year of negotiation between employers and unions in Spain, the “Collective Agreement of Veterinary Centres and Services” is about to be officially published, it will apply to companies -either natural or legal person, mercantile, charitable or non-profit-  who, within or outside a veterinary health center, carry out animal assistance activities and it will have retroactive effect as of January 1, 2020.

9. Council of Animal Welfare  Many of the Spanish towns have not yet created this specialised municipal advisory council with the participation and involvement of local entities and/or groups related to defending animals. Among its members: environmental agents, animal protection associations, interested local departments, law enforcement authorities, shelter service provider, veterinarians, specialists, etc.

10. Micro-shelters and lack of coordination  Public Administrations do not collaborate with each other or make use of centralised contracting, with few exceptions. Instead of building and managing a new above-local or even provincial shelter, towns tend to cling to their small local sphere of power that is the municipal micro-shelter.

Nor are there work protocols involving different local departments – Recruitment, Environment, Public Safety or Public Health – while the public procurement itself tends to be conducted from a watertight compartment with little information flow. All results in a loss of quality and time with serious impact on both animal welfare and the administrative principles of coordination, collaboration, effectiveness and efficiency.

11. In the dark  Without distorting free competition, preliminary consultations, still of little use, are necessary to receive advice from third parties (such as independent experts, professional associations or NGOs), study the market, plan and properly prepare the tender, inform economic operators and fight corruption.

Likewise, the law imposes the obligation to schedule public contracting activity and, in certain cases, even to make its plan known in advance via prior information notices. Such scheduling allows for anticipation and forecast to have adequate time to determine the most appropriate formulas, selection and awarding criteria, as well as to involve other teams from the same administration. 

12. Use of minor contracts  A legal figure that cannot be used to tender animal nurseries services. Minor contract only applies to tenders, that could not have been planned, of unpredictable and punctual services, that are not periodic, do not exceed one year in duration, do not involve an extension and whose estimated value is less than €15,000. Other requirements are the prior report that motivates the need to celebrate the contract, the justification for not altering the object as well as the approval of the expense.

13. Cheap can be costly   Price-only criterion for choosing the best offer, in addition with non-compliance with the regulations, does not take into account factors such as animal welfare, quality, efficiency, effectiveness, suitability or sustainability. Faced with the disproportionate weight of the cost, regulation allows for, as examples:

  • Adequately and reasonably weighing the cost or price of the service against other social or qualitative criteria;
  • Using and justifying a calculation formula to assign punctuation for the “lower budget” criterion that keeps the due proportion between the offers and the points to be distributed and indicates “reckless tenders”;  or
  • Articulating an award procedure by phases that marks a minimum threshold in each one and that begins by evaluating the technical proposal. The objective is to avoid an award largely due to economic criteria and the consequent unworthy working conditions and services of terrible quality to the detriment of animals and public interest. 

In addition, both veterinary and domestic animal nurseries services are included in the “Health, social and related services” of Annex IV of the new law. Said special services have their own regime that, among others, requires a minimum quality criterion of 51% and requires guaranteeing the continuity, affordability, availability and exhaustiveness of the services; the needs and involvement of users; or innovation in provision.

14. Reserving the contract to social entities  Applicable legislation allows for the contract, for both domestic animal nurseries and veterinary services, considered “Health, social and related services”, may be subject to a reserve.

This means that only certain organisations have the right to participate in the tender for services of a social, cultural and health nature provided requirements are met such as a maximum contractual duration of three years, the objective of performing public service, the reinvestment of benefits or the ownership structure based on principles of participation.

15. Social options besides the reserve  The first article of the public procurement law establishes the obligation to incorporate social and environmental criteria as long as they they are related to the subject matter of the contract for a better quality-price ratio, better efficiency in the use of public funds and easier access for SMEs and social economy companies. 

In addition to contract reserve, the regulations make available to all municipalities multiple ways to achieve responsible, ethical and legal procurement that makes a difference for the rights of animals in their municipality, such as: 

  • Establishing a market share or the reserve of lots for entities of the so-called Social Economy;
  • Defining social award criteria that respect the best value for money and use an objective system of valuation of commitments and control of execution;
  • Requiring economic capacity that is reasonable, justified and proportional as a turnover that is much lower than the maximum limit of 150% of the estimated contract value or the accreditation of solvency by external means that does not prevent the participation of small entities;
  • Incorporating special conditions of performance of the contract, of obligatory fulfilment, that allow for a higher score of entities that contribute greater added value to a contractual benefit that responds to the needs of animal welfare and the public interest.

 Mercedes Camps Herrero

el Comtat, May 2020

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Photo by Federico Espiño on Pixabay