This is an issue very closely related to the acceptable award criteria under reg.67 PCR2015. Given that such provision requires many other comments, I think it is worth anticipating now my views on this frontier issue. The following remarks are based on my Public Procurement and the EU Competition Rules, 2nd edn (Oxford, Hart, 2015) 387-88.
Restrictions Derived from Award Criteria that Result in de facto Exclusion of Tenders or the Advantage of Some Tenders over Others. Even if rules on qualitative selection and non-discrimination requirements are formally complied with in a given tender, the adoption of certain award criteria could generate the same results as an infringement of those rules. That could be the case if the award criteria or their weighting favoured tenders submitted by certain operators on the basis of conditions that could not have been used for the purposes of the qualitative selection of candidates or that automatically exclude de facto a significant number of tenders (or even restrict the number of compliant tenders to one).
For instance, they could do so by requiring the implementation of quality management systems for the purposes of the specific contract that would have proven excessive or irrelevant for the purposes of assessing the general suitability of the tenderer; or that exclude certain operators because they focus on requirements whose implementation would be impossible for tenderers that did not comply with these or other requirements beforehand, or whose partial implementation would not be economically viable with regard exclusively to the specific contract. These sort of requirements are now potentially covered by article 67(2) of Directive 2014/24, given that it allows contracting authorities to include award criteria that do not relate ‘to an intrinsic characteristic of a product, that is to say something which forms part of the material substance thereof’ and, consequently, can focus on factors involved in the specific process of production, provision or trading or a specific process for another stage of their life cycle, ‘even where such factors do not form part of their material substance’.
In these instances, it is still important to highlight that the adoption of such award criteria could generate significant distortions or restrictions of competition—without, it must be admitted, generating a substantial potential for discrimination and, currently, with an apparent legal coverage under article 67(2) of Directive 2014/24. Therefore, in view of the requirements of the principle of competition, such a strategy should be significantly restricted and contracting authorities should guarantee that the award criteria and their weighting ensure equality of opportunity of all tenderers and, consequently, should not focus on or advantage compliance with criteria not restricted to the tender itself—ie, criteria that undertakings would be in a position to comply with or not depending on previous or general conditions unrelated (or not specifically related) to the subject-matter of the contract.
Drawing the line between, on the one hand, justified award criteria related to production processes or elements related to other stages in the life cycle of the products or services and, on the other hand, excessive and unjustified requirements that de facto advantage certain competitors over others will be difficult. In my view, it should be conducted on the basis of a strict proportionality requirement aimed at preventing unjustified distortions of competition.
These issues were recently analysed (in general terms) by the CJEU in relation to requirements concerning corporate social responsibility policies and, more specifically, with a focus on requirements of compliance with ‘criteria of sustainability of purchases and socially responsible business’. These are requirements that clearly affect tenderers as a whole and are remotely related to the specific scope of the contract (where contracting authorities can, however, avail themselves from the use of social labels). In that regard, and in line with what is here submitted, it is important to stress that the CJEU rejected the possibility to consider such requirements as the establishment of minimum levels of professional or technical ability and emphasised that such type of considerations are incompatible with the rules of the procurement Directives when they are unrelated or go beyond the subject matter of the contract.
Consequently, in order to avoid distortions of competition (and regardless of the creation of discriminatory situations), contracting authorities must refrain from setting such type of requirements as either selection or award criteria that result in de facto exclusion of tenders or the advantage of some tenders over others. In my opinion, the reasoning of the CJEU regarding those requirements at qualitative selection phase are transferrable mutatis mutandis to their introduction as award criteria under article 67(2) of Directive 2014/24. Otherwise, the use of this new provision would further erode and damage the distinction between selection and award criteria, which the CJEU has recently emphasised and which, consequently, should be respected in the detailed application of the rules concerning award criteria.