Economic operators under Reg.19 Public Contracts Regulations 2015

Reg.19 of the Public Contracts Regulations 2015 (PCR2015) is concerned with economic operators and groups of economic operators, and transposes the rules in Art 19 of Directive 2014/24 with very minor drafting variations. The rules under reg.19 PCR2015 are grouped into two subheadings. Regs.19(1) and (2) are concerned with individual economic operators. Regs.19(3) to (6) are concerned with groups of economic operators.

Economic operators

Under reg.19(1) PCR2015, contracting authorities cannot prevent the participation of economic operators in the tender for service contracts solely on the ground that, under the law England and Wales, they would be required to be either natural or legal persons--always provided that the economic operator is entitled to provide the relevant service under the law of the Member State in which it is established. This is reminiscent of the rules under the Services Directive and clearly aimed at avoiding restrictions derived from professional regulatory regimes. 

On its part, under reg.19(2) PCR2015, contracting authorities can request economic operators to indicate the names and relevant professional qualifications of the staff to be responsible for the performance of the contract, where those personal elements are important--which Dir 2014/24 restricts to public service and public works contracts as well as public supply contracts covering in addition services or siting and installation operations.

This is related to the use of specific expertise and experience as an award criterion under reg.67(3)(b) PCR2015 (which will be commented in due course) and aims to provide contracting authorities with the possibility to ensure that contracts which performance depends on specific skills can be properly facilitated through the selection of an appropriate contractor. In my view, though, those requirements will have to be scrutinized under the principle of proportionality in reg.18(1) PCR2015 (see here).

Groups of economic operators

The general approach to the participation of groups of economic operators in public procurement is clearly flexible and facilitative. This is clear from the fact that reg.19(3) clearly establishes that groups of economic operators, including temporary associations, may participate in procurement procedures and shall not be required by contracting authorities to have a specific legal form in order to submit a tender or a request to participate. Moreover, under reg.19(6), contracting authorities may only require groups of economic operators to assume a specific legal form once they have been awarded the contract, to the extent that such a change is necessary for the satisfactory performance of the contract.

On its part, reg.19(4) determines that contracting authorities may specify how the assessment of compliance with the selection criteria under reg.58 PCR2015 will be carried out, provided that this is justified by objective reasons and is proportionate. In a similar vein, reg.19(5) establishes that any conditions for the performance of a contract by such groups of economic operators which are different from those imposed on individual participants shall also be justified by objective reasons and shall be proportionate.

Consequently, contracting authorities need to discharge a relevant burden of proof for the need of "special rules" for participation by groups of economic contractors. This is particularly in line with the recent case law of the CJEU, such as Swm Costruzioni 2 and Mannocchi Luigino, C-94/12, EU:C:2013:646, which clearly signaled that restrictions on group participation are to be assessed under a very stringent test (see my comment here).