Reliance on the capacities of other entities is an issue recently discussed by the CJEU in Swm Costruzioni 2 and Mannocchi Luigino (C-94/12, EU:C:2013:646, see discussion here), where the CJEU clearly stressed that the EU regime 'permits
the combining of the capacities of more than one economic operator for
the purpose of satisfying the minimum capacity requirements set by the
contracting authority, provided that the candidate or tenderer relying
on the capacities of one or more other entities proves to that authority
that it will actually have at its disposal the resources of those
entities necessary for the execution of the contract' (para 33).
This resonates with reg.63(1) PCR2015, according to which an economic operator may, where appropriate and for a particular contract, rely on the economic and financial standing and technical
and professional ability of other entities, regardless of the legal nature of the links which it has with them. Consequently, this facilitative approach needs to inform the interpretation of reg.63 PCR2015 / Art 63 Dir 2014/24.
63 of Dir 2014/24 maintains the functional approach in Directive 2004/18
and consolidates the rules on reliance on the capacities of other entities scattered in Arts 47(2), 47(3), 48(3) and 48(4) of that Directive.
It continues to make it clear that, as long as it is appropriate for a
particular contract, any economic operator can ‘rely on the capacities of other entities, regardless of the legal
nature of the links which it has with them’ to which aim it ‘it shall prove to the contracting authority
that it will have at its disposal the resources necessary, for example, by
producing a commitment by those entities to that effect’. Equally and under
the same conditions, ‘a group of economic
operators […] may rely on the
capacities of participants in the group or of other entities’.
However, the new Directive goes beyond these general rules and imposes more
specific (and restrictive) criteria concerning reliance on other operators for
Firstly, with regard to
criteria relating to the educational and professional qualifications
or to the relevant professional experience, economic operators may only
rely on the capacities of other entities where the latter will perform the
works or services for which these capacities are required.
Secondly, the contracting
authority shall verify whether the other entities on whose
capacity the economic operator intends to rely fulfill the relevant selection
criteria or whether there are grounds for their exclusion. Consequently,
an entity which does not meet a relevant selection criterion, or in respect of
which there are grounds for exclusion, may be excluded (ie may not be relied upon). In the precise terms of Art 63(1)
Dir 2014/24 ‘[t]he contracting authority shall
require that the economic operator replaces an entity which does not meet a
relevant selection criterion, or in respect of which there are compulsory
grounds for exclusion. The contracting authority may require or may be required
by the Member State to require that the economic operator substitutes an entity
in respect of which there are non-compulsory grounds for exclusion.’
Thirdly, Member States may
provide that in the case of works contracts, service contracts and siting or installation
operations in the context of a supply contract, contracting authorities may
require that certain critical tasks be performed directly by the
tenderer itself or, where the tender is submitted by a group of
economic operators, by a participant in that group.
Finally, where an economic
operator relies on the capacities of other entities with regard to criteria relating
to economic and financial standing, the contracting authority may require that the
economic operator and those entities be jointly liable for the execution
of the contract.
In my view, the first two
additions are sensible and aim to prevent instances where reliance on third
party capabilities is merely formal. However, the same cannot be said from the other
two requirements. On the one hand, there is no good reason to require that the
conduct of critical tasks be carried out by the main contractor, given that it
is already assuming full liability for such tasks. Imposing a requirement that
the task is actually carried out by the main contractor can have the effect of
excluding other tenderers that could actually fulfill the contract relying on
the capabilities of third parties and, consequently, runs contrary to the
functional approach in the current Directive, goes beyond the terms of Art
19 of Dir 2014/24
and, ultimately, of the case law of the CJEU on teaming and joint bidding.
On the other hand, and on a related note, the last requirement of joint
liability for the execution of the contract can make it very difficult to reach
subcontracting agreements or similar arrangements for the reliance on third
parties for the partial execution of a minor part of the contract. Moreover, it
can result in complicated structures of side letters of indemnity that raise
the legal costs linked to participation. In my opinion, in relation with both
requirements, the contracting entity should be satisfied with the liability of
the main contractor and, if need be, ‘self-protect’ through requirements for
adequate professional risk indemnity insurance under Art 58(3) of Dir 2014/24.