Test reports, certificates and other means of proof under Reg. 44 Public Contracts Regulations 2015

Reg.44 of the Public Contracts Regulations 2015 (PCR2015) transposes the rules of Article 44 of Directive 2014/24 on test reports, certificates and other means of proof and is closely linked to the rules on technical specifications (technical neutrality) and due diligence in the evaluation of tenders (conflicts of interest). Pedro's comments focus on the informational difficulties that contracting authorities face in the practical application of these rules. My comments focus on the link with technical neutrality.

Indeed, the rules on test reports, certificates and other means of proof are instrumental in ensuring that contracting authorities do not reject tenders that would technically equivalent to those that do not need to resort to these documents in order to proof compliance with the applicable technical specifications [see reg.42(14) PCR2015, which clearly indicates that "a contracting authority ... shall not reject a tender on the grounds that the works, supplies or services tendered for do not comply with the technical specifications to which it has referred, once the tenderer proves in its tender by any appropriate means, including the means of proof referred to in regulation 44, that the solutions proposed satisfy in an equivalent manner the requirements defined by the technical specifications."]. In that regard, it should not be surprising that reg.44 PCR2015 attempts to restrict the discretion of contracting authorities in determining which documents to accept.

After determining that contracting authorities may require economic operators to provide a test report from a conformity assessment body or a certificate issued by such a body as means of proof of conformity with requirements or criteria set out in the technical specifications, the award criteria or the contract performance conditions [reg.44(1)], and requiring them to accept certificates from equivalent other conformity assessment bodies [reg.44(2)]; reg.44(3) significantly limits the possibilities for contracting authorities to specify exactly and rigidly the documentation they are willing to receive and review. 

Indeed, reg.44(3) PCR2015 determines that contracting authorities must accept other appropriate means of proof, such as a technical dossier of the manufacturer, where the economic operator concerned had no access to the certificates or test reports required by the contracting authority, or no possibility of obtaining them within the relevant time limits, provided that the lack of access is not attributable to the economic operator concerned, and the economic operator concerned thereby proves that the works, supplies or services provided by it meet the requirements or criteria set out in the technical specifications, the award criteria or the contract performance conditions. 

Once more, thus, the functional approach adopted by the new procurement rules impose a degree of flexibility that makes one wonder if the general rules included in reg.44(1) and (2) PCR2015 were necessary or, indeed, useful. It would have been simpler to establish that contracting authorities need to accept all means of proof whereby economic operators can demonstrate that their tenders meet the technical specifications. 

By setting partially binding rules on means of proof, contracting authorities are opening themselves to the obligation to assess the justifications provided by tenderers on their impossibility to obtain the specific documents desired by the contracting authority. Such decisions will, of course, be open to challenge and review under the principles of proportionality, non-discrimination and competition (reg.18 PCR2015). Hence, there is nothing to be gained from specifying the means of proof that the contracting authority wishes to receive. It might as well leave the decision open to economic operators and then assess each of the documents as they come.

Evidently, this goes along the same lines already pointed out by the duty of technically-neutral assessment under reg.42 PCR2015 and, by preventing a box-ticking exercise during the technical evaluation of tenders, it implicitly demands from contracting authorities to have (or outsource) significant technical expertise, particularly if they acquire goods or services where there is no clear standardisation in the market. This may be yet another catalyst for further centralisation of procurement, as small or inexperienced contracting authorities may find the duty of assessing diverse test reports, certificates and other means of proof daunting. Nonetheless, it is very consistent requirement of a set of procurement rules based on technical neutrality.