Reg.59 of the Public Contracts Regulations 2015 (PCR2015) transposes Article 59 of Directive 2014/24 concerning the European Single Procurement Document (ESPD), which attempts to reduce the red tape involved in the participation of public procurement processes. Article 59 of Dir 2014/24 introduces a significant attempt to flexibilise documentary requirements and to reduce red tape in public procurement by means of the ESPD (ie a collection of self-declarations) and other facilitating measures [for discussion, including the abandoned proposal for a European Procurement Passport, see A Sanchez Graells, “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” in C Tvarnø, GS Ølykke & C Risvig Hansen (eds), EU Public Procurement: Modernisation, Growth and Innovation (Copenhagen, DJØF, 2012) 107, 121-126]. Pedro is quite optimistic about the advantages of the system. As I discuss below, I am much less so.
Under this new system, economic operators will be able to submit an ESPD ‘consisting of an updated self-declaration as preliminary evidence in replacement of certificates issued by public authorities or third parties confirming’ that they are not affected by exclusion grounds, that they meet selection and short-listing criteria (as applicable) and that they will be able to produce hard documentary evidence of such circumstances without delay, upon request of the contracting authority [art 59(1)].
Indeed, the ESPD ‘shall consist of a formal statement by the economic operator that the relevant ground for exclusion does not apply and/or that the relevant selection criterion is fulfilled and shall provide the relevant information as required by the contracting authority. The ESPD shall further identify the public authority or third party responsible for establishing the supporting documents and contain a formal statement to the effect that the economic operator will be able, upon request and without delay, to provide those supporting documents’.
Moreover, where the contracting authority can obtain the supporting documents directly by accessing a database pursuant to Art 59(5) odf Dir 2014/24, the self-declaration shall also contain the information required for this purpose, such as the internet address of the database, any identification data and, where applicable, the necessary declaration of consent. In order to try to increase the advantages of the ESPD, it is conceived as a ‘reusable’ instrument, so that ‘[e]conomic operators may reuse an ESPD which has already been used in a previous procurement procedure, provided that they confirm that the information contained therein continues to be correct’.
The contracting authority will then be free to request submission of such documents at any point of the process where this appears necessary to ensure the proper conduct of the procedure and, in any case, shall require them from the chosen contractor prior to awarding the contract, unless it already possesses these documents or can obtain these documents or the relevant information by accessing a national database [art 59(4)].
In that regard, it is worth stressing that, as a complementary facilitating measure, Art 59(5) of Dir 2014/24 foresees that: ‘economic
operators shall not be required to submit supporting documents or other
documentary evidence where and in so far as the contracting authority
has the possibility of obtaining the certificates or the relevant
information directly by accessing a national database in any Member
State that is available free of charge, such as a national procurement
register, a virtual company dossier, an electronic document storage
system or a pre-qualification system. … For [that] purpose
… Member States shall ensure that databases which contain relevant
information on economic operators and which may be consulted by their
contracting authorities may also be consulted, under the same
conditions, by contracting authorities of other Member States’.
As a complement, and according to Art 59(6) of Dir 2014/24, ‘Member States shall make available and up-to-date in e-Certis a complete list of databases containing relevant information on economic operators which can be consulted by contracting authorities from other Member States. Upon request, Member States shall communicate to other Member States any information related to the databases referred to in this Article’. Moreover, according to Art 61(1) of Dir 2014/24, ‘With a view to facilitating cross-border tendering, Member States shall ensure that the information concerning certificates and other forms of documentary evidence introduced in e-Certis established by the Commission is constantly kept up-to-date’.
It should be recalled that failure to provide the required documentation in support of the self-declarations submitted by the economic operator will constitute a discretionary ground for exclusion [art 57(4)(h)], which the contracting authority can apply any time [art 57(5)]. In that regard, the system seems too lenient towards the failure to support any of the prior declarations. Under the initial 2011 proposal for a new Directive, it would generate an impediment to award under Art 68, now suppressed. Indeed, it is hard to understand why contracting authorities would be free to award the contract to an economic operator that cannot support its own self-declarations and how that would not infringe the principles of transparency, equal treatment and non-distortion of competition. In my view, this should constitute a case of mandatory exclusion of the economic operator concerned, unless there were good reasons beyond its control that prevented it from submitting the required documentation.
More generally, in my view, this rather revolutionary proposal (revolutionary at least for countries with ‘traditional’ administrative procedure regulations) for the acceptance of the ESPD (rectius, ‘mere’ self-declarations) clearly has the potential to reduce the costs of participating in the tender for unsuccessful bidders (increasing the incentive to participate), but generates a relatively small advantage for successful bidders (only a time gain, and of an uncertain length at that), increases the length of the procedure (there is no regulation concerning the time that the authority must give the successful tenderer to produce the requested documents prior to award) and generates a risk of potential award to 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). These risks are identified in the Commission's Impact Assessment of the Proposal for a Directive of the European Parliament and of the Council on Public Procurement (page 70), but simply dismissed on the hope that self-declarations would bring a significant reduction of time and costs and a potential automatisation of selection and award procedures. I do not think is a proper assessment of the issues that will likely arise in practice.
In any case, in order to complete this proposal, I think that it would be necessary to set speedy but reasonable time limits to produce the requested documents and to strengthen the consequences of failing to produce supporting evidence for the self-declarations, which should not only be an impediment to award, but also be clearly identified as a ground for mandatory exclusion.
Moreover, failure to back a self-declaration / ESPD submission should be expressly set as a head of damage that allows 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—since this case is not fully covered by the provision of Art 73(b) of Dir 2014/24, which only requires that contracting authorities have the possibility to terminate a public contract during its term, where it turns out that ‘the contractor has, at the time of contract award, been in one of the situations referred to in Article 57(1) and should therefore have been excluded from the procurement procedure’.
Hence, if the self-declaration that the economic contractor has been unable to support is not concerned with Art 57(1), there is not even an indirect way to challenge (at least clearly) the award of the contract despite the infringement of Art 59(4) of Dir 2014/24. In my opinion, challenges under domestic contract rules governing misrepresentations or falsity in private documents should be available in this case, but it would have been desirable that the new rules included a specific termination clause in this case in Art 73.