According to the UK Cabinet Office's latest Progress Update on the Modernisation of the EU Procurement Rules (http://tinyurl.com/modernisationupdate), the creation of a new European Procurement Passport (EPP) that the Commission had included in the December 2011 proposal for the modernisation of Directive 2004/18 has been dropped from the compromise text (http://tinyurl.com/modernisationcompromise).
This should be seen as a welcome development, since it will finally not increase the red tape involved in public procurement procedures (as anticipated in my Are the Procurement Rules a Barrier for Cross-Border Trade within the European Market? A View on Proposals to Lower that Barrier and Spur Growth: http://ssrn.com/abstract=1986114).
Indeed, as the Cabinet Office stresses, since the information to be included in the EPP is now largely going to be provided by self-declaration with only the winning bidder submitting the documentary evidence (in case the rules of art 57 in the compromise text hold the rest of the EU legislative process), it now seems an unnecessary administrative burden.
However, it should be stressed that self declarations still present some issues, due to the risk of strategic behaviour on the part of bidders. Failure to submit the supporting evidence regarding the information included in a self-declaration is configured exclusively as a (discretionary) exclusion ground under Article 55(3)(f) of the compromise text (which comes to replace the suppressed provisions in article 68 of the December 2011 proposal), in the following terms:
Contracting authorities may exclude or may be required by Member States to exclude from participation in a procurement procedure any economic operator in any of the following situations: [...] (f) where the economic operator has been guilty of serious misrepresentation in supplying the information required for the verification of the absence of grounds for exclusion or the fulfilment of the selection criteria, has withheld such information or [is] not able to submit the supporting documents required pursuant to Article 57;
This is in, my opinion, the proper treatment of this circumstance (and clearly better than its treatment as a 'mere' awarding impediment, as initially proposed by the Commission). However, I think that it is worth stressing that this rule still leaves excessive uncovered risks in case of strategic behaviour by non-compliant bidders that would require second or ulterior awards (with the corresponding difficulties regarding the need to ensure that other bidders keep their offers open, new award notices, etc). Even if the buying body can (self)protect its interests by excluding the tenderer [and, possibly, by pushing for an extended exclusion from all procurement procedures, depending on the national rules on debarment--which will need to be developed to implement art 57(4) of the compromise text] there is a risk of uncompensated damages and, implicilty, scope for criminal proceedings for fraud (or related) offences.
Therefore, I still think that it is necessary to strengthen the consequences of failing to produce supporting evidence for the self-declarations (and, more generally, of providing false information), which should not only be a ground for exclusion, but also be reinforced by rules that set it as a head of damage that allowed contracting authorities to recover any additional expenses derived from the need to proceed to a second-best, delayed award of the contract (without excluding the eventual enforcement of criminal law provisions regarding deceit or other types of fraud under applicable national laws). Also, rules on annulment of the awarded contract and other sanctions are needed for those instances where the discovery of the falsity of the documents occurs after contract award, when exclusion does not seem to be an apropriate remedy.