Means of proof under Reg. 60 Public Contracts Regulations 2015

Reg. 60 of the Public Contracts Regulations 2015 (PCR2015) transposes Article 60 and Annex XII of Directive 2014/24 regarding the means of proof that contracting authorities can require or be forced to accept in relation to exclusion grounds and selection criteria when running tender procedures. This provision is functionally related to reg.44 PCR2015 on test reports, certificates and other means of proof connected to technical specifications (see here and here) and, in my view, must be subjected to the same possibilistic interpretation.

As regards the formalities associated to the exclusion and qualitative selection of candidates and tenderers, reg.60 PCR2015 determines in minute detail the certificates, statements and other means of proof that contracting authorities can require in order to check for the absence of grounds of exclusion and compliance with qualitative selection criteria and makes it clear that, together with reg.62 PCR2015 on quality assurance standards and environmental management standards, it sets a closed list (numerus clausus) of documentation that can be required from economic operators [Pedro concurs]. This is particularly clear from reg.60(2) PCR2015, which stresses that contracting authorities 'shall not require from economic operators means of proof other than those referred to in this regulation and in' regs.58(16) and 62

The rules in reg.60 PCR2015 are thus fundamentally limited to setting the formal requirements that contracting authorities can impose on candidates as regards the certificates and other formalities to be provided to prove that they meet the qualitative selection criteria set in the tender documents, with the clear aim of limiting the requirements that can be imposed on candidates and of introducing a certain degree of flexibility which allows interested undertakings to prove their standing and abilities through alternative means

This is particularly clear in regs.60(8) PCR2015 in connection with economic and financial standing, given that '[w]here, for any valid reason, the economic operator is unable to provide the references or other information required by the contracting authority, it may prove its economic and financial standing by any other document which the contracting authority considers appropriate' (emphasis added).

Reg.60(9) PCR2015 determines the documentation that contracting authorities can require regarding candidates' and tenderers' technical and professional ability. Similarly to what was argued in relation to technical specifications under reg.44 PCR2015, I submit that contracting authorities are under an obligation to adopt a neutral and flexible approach to the determination of economic operators’ technical abilities and, particularly as regards the acceptable means of proof, and that they are bound to the adoption of a possibilistic approach. 

Therefore, contracting authorities must be prepared to verify economic operators’ technical abilities on the basis of references different from previous experience—even if they have not been expressly included in the notice or in the invitation to tender—and should adopt a pro-competitive approach in the determination of the equivalence of the alternative references and the minimum previous experience requirements set in the tender documents. In short, the contracting authority cannot demand specific types of documents--particularly if the imposition of specific documentary requirements would impose a disproportionate burden on candidates and tenderers from other Member States.

This is made explicit in reg.60(5) PCR2015 when it comes to means of proof of non-existence of exclusion grounds, to the effect that where the member State or country of origin or the country where the economic operator is established does not issue specific documents or certificates, or to the extent that these do not cover all required information, 'they may be replaced by a declaration on oath or, in member States or countries where there is no provision for declarations on oath, by a solemn declaration made by the person concerned before a competent judicial or administrative authority, a notary or a competent professional or trade body, in the member State or country of origin or in the member State or country where the economic operator is established'.

In my view, the same anti-formalistic approach needs to control all documentary requirements related to the means of proof of the absence of grounds for exclusion and the fulfillment of selection criteria.