How far can Member States push formal requirements in self-certifications? Will the CJEU give Member States a wake up call? (a propos AG Wathelet in C-46/15 )

In his Opinion of 3 March 2016 in Ambisig, C-46/15, EU:C:2016:137, Advocate General Wathelet explored the limits of the formal requirements that Member States can impose on self-certifications provided by tenderers in public procurement procedures. The case discusses the limits under the 2004 rules of EU public procurement, where the use of self-certification was certainly exceptional. However, it is interesting to consider this case as an opportunity for the Court of Justice of the European Union (CJEU) to give Member States a wake up call in the roll-out of the 2014 EU public procurement rules, where self-certification has pretty much become the rule rather than the exception. Not least, because AG Wathelet has invited the CJEU by engaging in arguments regarding the future rules.

Why will this ruling be relevant in the future?

Under the 2004 rules [specifically, Art 48(2)(a) of Dir 2004/18], economic operators taking part in public procurement procedures were allowed to furnish evidence of their technical abilities by one or more specified means of proof, which included a list of the principal deliveries effected or the main services provided in the past three years. If the contracting authority indicated that it wishes to receive such a list [Art 48(6) Dir 2004/18], evidence of delivery and services provided had to be be given in the form of certificates issued or countersigned by the competent authority that received the services or deliveries or, 'where the recipient was a private purchaser, by the purchaser’s certification or, failing this, simply by a declaration by the economic operator' [Art 48(2)(a)(ii) of Dir 2004/18, emphasis added]. Thus, the use of such self-declaration of private sector experience was foreseen as a mechanism of last resort or escape clause.  This has now been significantly amended in the 2014 rules.

On the one hand, the system now relies in the self-declarations underlying the European Single Procurement Document [ESPD, Art 59 Dir 2014/24 and , see Part IV, Section B, para (1a), fn 40], which allows economic operators to simply declare that they meet the the relevant selection criteria that have been set out by the contracting authority. Only at the request of the contracting authority, and ideally only if they are chosen for the award of the contract, must economic operators furnish certificates and means of proof backing up their self-declaration [Art 59(4) Dir 2014/24]. There is no doubt, then, that the system is one where self-declarations are now the norm.

Moreover, on the other hand, it should be taken into account that '[c]ontracting authorities shall indicate the required conditions of participation ... together with the appropriate means of proof, in the contract notice or in the invitation to confirm interest' [Art 58(5) Dir 2014/24]. Their choice of means of proof is however limited. Contracting authorities shall not require means of proof other than those referred to in Article 60 Dir 2014/24. For our purposes, according to the relevant provision, the requirement remains that evidence of the economic operators’ technical abilities may be provided by one or more of several specified means of proof, which include a list of the principal deliveries effected or the main services provided over at the most the past three years (Part II of Annex XII Dir 2014/24). However, there is no specific reference of the way in which these lists need to be backed up by economic operators. Thus, the rule disputed in Ambisig that where the recipient was a private purchaser, the economic operator must back-up the relevant entry in its experience list 'by the purchaser’s certification or, failing this, simply by a declaration by the economic operator ' is gone.

The question remains, though, how will Member States (or contracting authorities) deal with self-certifications of experience under the new rules at a practical level. It does not seem too far-fetched to assume that they will carry on as usual and require the same types of supporting (self)certifications that they are used to handle under the 2004 rules. Thus, an analysis of the Opinion of AG Wathelet in Ambisig is relevant, not only in relation to the already phasing out 2004 rules, but also for the proper roll-out of the 2014 rules.

The issues surrounding formalities in Ambisig under the 2004 rules

The dispute in Ambisig was multi-dimensional, particularly because the Portuguese interpretation of Art 48(2)(a)(ii) of Dir 2004/18 was rather complex (or rather, exceedingly formalistic) when it came to the possibility of accepting certifications from private purchasers, which was expressed in the following stylised terms in the contract notice of the procurement in dispute: In order to be selected, the candidates must submit the following application documents: ... a declaration by the client on headed, stamped paper confirming ... in accordance with the model declaration in Annex ... to this contract notice. The declaration must bear a signature certified by a notary, lawyer or other competent entity, specifying the capacity of the person signing.

This raises many issues, particularly in relation with the impossibility to provide a mere self-declaration by the economic operator itself (which is no longer a legal issue under the 2014 rules). However, for the purposes of assessing the relevance of this case for the future, the relevant question before the CJEU, and towards which AG Wathelet's Opinion provides an interesting answer is as follows:

Must Article 48(2)(a)(ii), second indent, of Directive 2004/18 be interpreted to the effect that it precludes the application of rules laid down by the contracting authority, which, on pain of exclusion, require the private purchaser’s certification to contain authentication of the signature by a notary, lawyer or other competent entity?

In my view, for the reasons explained above, this will apply mutatis mutandi to any requirements applicable to certificates to be provided as back of an ESPD self-declaration of experience under the 2014 rules.

Interestingly, after engaging in another tripping exercise of law and language where a literal analysis of several language versions of the contested provision are compared and contrasted without reaching any firm position on its proper interpretation (for a recent previous case of such analysis, on that occasion by the General Court, see here), AG Wathelet considers the following:

62. First of all, the Court has consistently held that Article 48 of Directive 2004/18 establishes a closed system which limits the methods of assessment and verification available to contracting authorities and, therefore, limits their opportunities to lay down requirements.
63. The Court has also stated that even within the framework of an open system ... contracting authorities’ freedom is not unlimited and the aspects chosen must be ‘objectively such as to provide information on such standing … without, however, going beyond what is reasonably necessary for that purpose’.
64. The same considerations apply, a fortiori, to the requirements laid down in the closed evidential system under Article 48 of Directive 2004/18. In my opinion, requiring authentication of the signature of a private purchaser attesting to a delivery effected or a service provided by an economic operator who has applied for a contract goes beyond what is necessary to prove the technical ability of the operator in question and is excessively formalistic when compared to the straightforward declaration by the economic operator, which is the subsidiary form of evidence permitted under the second indent of Article 48(2)(a)(ii) of Directive 2004/18.
65. If the contracting authority has concerns about the veracity of the document submitted to it, it may also, in my view, request additional information to demonstrate the authenticity of the certification provided. Indeed, as part of the contextual analysis, it must be recalled that Article 45(2)(g) of Directive 2004/18 makes it possible to exclude from the contract any operator who ‘is guilty of serious misrepresentation in supplying the information required’ (Opinion in C-46/15, paras 62-65, references omitted, emphasis in italics in the original, emphasis in bold added).

AG Watheler's glimpse into the future

Remarkably, after carrying out a historical analysis of the way in which the 2004 rules came to have their wording, AG Wathelet uses the 2014 rules as an interpretation tool. Beyond the time-consistency (or not) of such an approach to statutory interpretation, his analysis includes policy arguments around the following considerations:

73. ... Directive 2014/24 ... goes even further in the sense of reducing evidential formalities by removing all references to certification by the purchaser.
74. From now on, Article 60(4) of that directive — which replaces Article 48(2) of Directive 2004/18 — simply provides that ‘evidence of the economic operators’ technical abilities may be provided by one or more of the means listed in Annex XII Part II, in accordance with the nature, quantity or importance, and use of the works, supplies or services’.
75. Under Annex XII Part II(a)(ii) of Directive 2014/24, the means of evidence attesting to economic operators’ technical abilities are ‘a list of the principal deliveries effected or the main services provided over at the most the past three years, with the sums, dates and recipients, whether public or private, involved. Where necessary in order to ensure an adequate level of competition, contracting authorities may indicate that evidence of relevant supplies or services delivered or performed more than three years before will be taken into account’. The need for this list to be accompanied by a certification from the purchaser has therefore disappeared.
76. Even though Directive 2014/24 does not apply to the dispute in the main proceedings, this new directive, which repeals Directive 2004/18, is relevant in that it expresses the current intention of the EU legislature. It may therefore be of assistance in ascertaining the current meaning of an earlier, similar provision, provided, however, that such interpretation is not contra legem.
77.  In the present case, it seems to me that Directives 92/50 and 2014/24 confirm the EU legislature’s continuing intention not to make evidence of the technical ability of an economic operator subject to any specific formality and do so in a way that does not conflict with the wording of the applicable provision.
78. In other words, viewed in its context and from a historical perspective, the second indent of Article 48(2)(a)(ii) of Directive 2004/18 imposes no other requirement than the assurance or confirmation, by the purchaser, that the service on which the economic operator relies with a view to securing the contract was actually provided (Opinion in C-46/15, paras 73-78, references omitted, emphasis added).

I am not sure that AG Wathelet's consideration in para 75 would necessarily be the natural interpretation of Annex XII Part II(a)(ii) of Directive 2014/24, because contracting authorities may well be tempted to consider that the Directive does not actually exclude any mechanisms of certification from the purchaser (it simply just not foresees them) and, in any case, they could be tempted to exercise their prerogative to 'invite economic operators to supplement or clarify the certificates received' [Art 59(4) in fine Dir 2014/24] by requesting similarly formalised (private) purchaser certifications. Thus, his interpretation, which I personally very much share, runs against that possibility and an explicit endorsement by the CJEU would be most welcome.

In any case, what is clear is that, in AG Wathelet (and my) opinion, the 2004 and ad maiorem the 2014 EU public procurement rules preclude 'the application of rules laid down by a contracting authority which, on pain of exclusion, require the private purchaser’s certification to bear a signature certified by a notary, lawyer or other competent entity'. We can just hope that the CJEU will endorse this approach.

CJEU makes interesting points regarding illegal presumptions of restriction of competition in public procurement (C-425/14)

In its Judgment in Impresa Edilux and SICEF, C-425/14, EU:C:2015:721, the Court of Justice of the European Union (CJEU) was asked to establish the parameters under which an economic operator can be excluded from a procurement procedure below EU thresholds for not supplying a declaration of acceptance of a legality protocol on combating criminal activity. This case is interesting because it involves the use of self-declarations as participation requirements in procurement procedures, which is bound to gain more and more importance under Directive 2014/24.

However, the Judgment in Impresa Edilux and SICEF is also remarkable because the CJEU (maybe only by coincidence) makes very important points regarding the establishment of excessive presumptions of restrictions of competition as part of this type of self-declarations. By looking in detail at the content of the declarations required from interested tenderers, the CJEU identifies a public procurement practice that results in the establishment of irrebutable presumptions of distortion of competition that go beyond what is required to uphold the principle of competition in the public procurement setting. In doing so, the CJEU establishes clear red lines regarding this type of presumptions.

This blog post focuses on both sets of issues in turn. First, it concentrates on the analysis of anti-criminal activity protocols and self-declarations. Secondly, it moves on to assess the treatment of the presumptions of competitive distortion that can derive from certain types of self-declarations.

1. Compatibility of anti-criminal activity protocols with EU procurement rules
The case at hand concerned public procurement in Italy, where Article 1(17) of Law No 190 on measures for the prevention and suppression of corruption and illegal conduct in the public administration of 6 November 2012 (‘Law No 190/2012’) foresees that ‘Contracting authorities may state in public procurement notices... that failure to comply with the clauses of legality protocols or integrity agreements is to constitute a ground for exclusion from the tendering procedure.’ 

The CJEU emphasises that, according to the referring court (ie the Council of Administrative Justice for the Region of Sicily, Italy), 'the purpose of introducing legality protocols into Italian law is to prevent and combat the pernicious phenomenon of the infiltration of organised crime, firmly entrenched in some regions of southern Italy, into the public procurement sector. The referring court takes the view that those protocols are also essential in order to protect the fundamental principles of competition and transparency underlying Italian and EU public procurement legislation' (C-425/14, para 13).

Thus, the main legal issue put to the CJEU for preliminary interpretation concerned the compatibility of exclusion grounds such as that of Article 1(17) of Law No 190/2012 with EU law in the case of public procurement procedures not covered by the relevant EU rules because the value of the contract does not meet the relevant thresholds. 

This is an important point to note. Should the value of the contract have met or exceeded the EU thresholds, the case would have concerned the compatibility of such exclusion ground with the specific rules of Article 45 of Directive 2004/18 now repealed by Article 57 of Directive 2014/24 (which, for these purposes, is fundamentally equivalent). This could have altered the legal analysis in view of the constant case law of the CJEU that interprets the exclusion clauses in Art 45 Dir 2004/18 (and now Art 57 Dir 2014/18) as listing exhaustively the grounds based on objective considerations of professional quality which can serve to justify the exclusion of a contractor from participation in a public contract

That is, the constant position in the case law that those provisions preclude Member States or contracting authorities from adding other grounds for exclusion based on criteria relating to the professional qualities of the candidate or tenderer, and more specifically professional honesty, solvency, and economic and financial capacity (see Case 76/81 Transporoute [1982] ECR 417 para 9; Joined Cases C-226/04 and C-228/04 La Cascina [2006] ECR I-1347 para 21–22; and Case C-213/07 Mikhaniki [2008] ECR I-9999 para 40–43. This has recently been reiterated in case C-376/08 Serrantoni and Consorzio stabile edili [2009] ECR I-12169 para 31; C-74/09 Bâtiments and Ponts Construction and WISAG Produktionsservice [2010] ECR I-7271 para 43; and Case Forposta and ABC Direct ContactC-465/11, EU:C:2012:801 para 38]

As the referring court indicated, this would have required an assessment of the extent to which 'Article 1(17) of Law No 190/2012 could be consistent with the third sentence of Article 45(1) of [Directive 2004/18], which, in its view, provides a derogation from the exhaustive nature of the grounds for exclusion for overriding requirements in the general interest, such as those relating to public order and the prevention of crime.' In my view, that would not be possible under Art 45(1) 2004/18 and much less now under the revised wording of Art 57(3) of Directive 2014/24. 

However, given that the contract in the case at hand was below the thresholds, the CJEU did not assess such compatibility with Art 45 Dir 2004/18 (Art 57 Dir 2014/24), and ruled exclusively in relation to the general principles of EU public procurement law (paras 18-24). Indeed, the CJEU reformulated the question in the following terms:

whether the fundamental rules and general principles of the Treaty, in particular the principles of equal treatment and of non-discrimination and the consequent obligation of transparency, must be interpreted as precluding a provision of national law under which a contracting authority may provide that a candidate or tenderer be excluded from a tendering procedure relating to a public procurement contract for not having lodged, with its tender, a written acceptance of the commitments and declarations contained in a legality protocol, such as that at issue in the main proceedings, the purpose of which is to prevent organised crime infiltrating the public procurement sector (C-425/14, para 25).

In answering that question, the CJEU makes a couple of interesting points:

28 It is clear that, by preventing criminal activity and distortions of competition in the public contracts sector, a measure such as the obligation to declare acceptance of that type of legality protocol appears to be such as to strengthen equal treatment and transparency in procurement procedures. In addition, inasmuch as that obligation is incumbent upon every candidate or concession-holder without distinction, it does not conflict with the principle of non-discrimination.
29 However, in accordance with the principle of proportionality, which constitutes a general principle of EU law, such a measure must not go beyond what is necessary to achieve the intended objective (see, to that effect, judgment in Serrantoni and Consorzio stabile edili, C-376/08, EU:C:2009:808, paragraph 33 and the case-law cited).
30 In that regard, it is appropriate ... to reject Edilux and SICEF’s argument that a declaration of acceptance of certain commitments is an ineffective means of combatting the infiltration of organised crime since observance of those commitments can be determined only after the contract concerned has been awarded. ...
32 ... as regards the content of the legality protocol ..., the commitments which must be given by candidates or tenderers under subparagraphs (a) to (d) of the legality protocol are, in essence, to indicate the progress of the works, the purpose, amount and recipients of subcontracts and derived contracts and the procedures for selecting contractors; to report any attempted interference, irregularity or distortion in the conduct of the tendering procedure and during performance of the contract, to cooperate with the police, by reporting any attempt at extortion, intimidation or influence of a criminal nature, and to include the same clauses in subcontracts. Those commitments overlap with the declarations contained in that protocol, under subparagraphs (h) to (j).
33 As regards a declaration such as that in subparagraph (g) of the legality protocol at issue in the main proceedings, whereby the participant declares that it has not concluded and will not conclude any agreement with other participants in the tendering procedure seeking to restrict or avoid competition, it is limited to the purpose of protecting the principles of competition and transparency in public procurement procedures.
34 Such commitments and declarations concern the honest conduct of the candidate or tenderer towards the contracting authority at issue in the main proceedings and cooperation with law enforcement. They do not, therefore, go beyond what is necessary in order to prevent organised crime infiltrating the public contract awards sector (C-425/14, paras 28-34, emphasis added).
Up to this point, the Judgment in Impresa Edilux and SICEF remains within what could be expected and the CJEU takes the chance to support Member States measures to prevent organised criminality where those initiatives do not conflict with explicit EU rules. As I mentioned, I am not sure that the same result would have been possible under the rules of Art 45 Dir 2004/18, or now Art 57 Dir 2014/24, unless the CJEU engaged in a line of reasoning along the lines followed in para 33 and opened the door to exclusion grounds that can be interpreted as remaining sufficiently close to the grounds actually listed in those provisions--and, in the case at hand, establishing a sufficient link with the mandatory grounds for exclusion based on participation in a criminal organisation or corruption, as regulated in Art 57(1)(a) and (b) of Directive 2014/24.

Moreover, along these same lines, the CJEU stresses that requiring a declaration to the effect of ensuring that the tenderer has not entered into anticompetitive agreements is not disproportionate--which seems useful for the interpretation of Art 59 Dir 2014/24 regarding the self-declarations that can be required from economic operators under the new mechanism of the European Single Procurement Document (ESPD). Therefore, up to this point, the case is useful but not necessarily ground-breaking.

Nonetheless, the specifics of the reasoning of the CJEU hide another interesting dimension of the case that, as mentioned, concerns a public procurement practice that results in the establishment of irrebutable presumptions of distortion of competition that go beyond what is required to uphold the principle of competition in the public procurement setting. We now turn to this second dimension of the Judgment in Impresa Edilux and SICEF.

2. Incompatibility of undercover or disguised restrictions of competition
Interestingly, after dealing with those core issues of the case, the CJEU keeps on with the very detailed assessment of the content of the specific declaration of acceptance of the legality protocol on combating criminal activity that was required from the tenderers. The purpose of this analysis is to exhaust the issue of proportionality but, maybe as a coincidence and in any case as a positive spillover, brings to light the fact that some of these protocols can include disguised measures restricting competition in terms of unduly preventing cooperation between undertakings, including  legitimate subcontracting.

In the specific case, the issue was that the required declaration included some requirements not necessarily linked with criminal behaviour, such as the obligation of participating tenderers to 'expressly and solemnly declare' that they: (e) are 'not in a relationship of control or association (legal and/or factual) with other competitors and that [they have] not concluded and will not conclude any agreement with other participants in the tendering procedure'; or (f) 'will not subcontract any type of tasks to other companies participating in the tender [...] and [are] aware of the fact that, otherwise, those subcontracts will not be authorised'. 

The CJEU assesses this requirement as follows:
36 ... it follows from the case-law of the Court that the automatic exclusion of candidates or tenderers who are in such a relationship [of control or of association] with other candidates or tenderers goes beyond what is necessary to prevent collusive behaviour and, therefore, to ensure the application of the principle of equal treatment and observance of the obligation of transparency. Such an automatic exclusion constitutes an irrebutable presumption of mutual interference in the respective tenders, for the same contract, of undertakings linked by a relationship of control or of association. Accordingly, it precludes the possibility for those candidates or tenderers of showing that their tenders are independent and is therefore contrary to the EU interest in ensuring the widest possible participation by tenderers in a call for tenders (see, to that effect, judgments in Assitur, C-538/07, EU:C:2009:317, paragraphs 28 to 30, and Serrantoni and Consorzio stabile edili, C-376/08, EU:C:2009:808, paragraphs 39 and 40).
37 ... the legality protocol also includes a declaration that the participant has not concluded and will not conclude any agreement with other participants in the tendering procedure. By excluding in this way any agreements between the participants, including agreements not capable of restricting competition, such a declaration goes beyond what is necessary to safeguard the principle of competition in the public procurement sector.

38 It follows that an obligation for a participant in a tendering procedure to declare, on the one hand, that it is not in a relationship of control or of association with other competitors and, on the other, that it has not concluded any agreement with other participants in the tendering procedure, with the consequence that, failing such a declaration, that participant is automatically excluded from that procedure, infringes the principle of proportionality.
39 Similar considerations must also apply as regards the declaration ... by which the participant declares that it will not subcontract any type of tasks to other undertakings participating in the tendering procedure and is aware of the fact that, otherwise, those subcontracts will not be authorised. In fact, such a declaration involves an irrebuttable presumption that any subcontract by the successful tenderer, after the contract has been awarded, to another participant in the same call for tenders resulted from collusion between the two undertakings concerned, without giving them the opportunity to show that is not the case. Thus, such a declaration goes beyond what is necessary to prevent collusive behaviour (C-425/14, paras 36-39, emphasis added).
These arguments of the CJEU should not be lost as a result of the apparently technical and disconnected case in which they have been made. They are essential to the assessment of the compatibility with EU law of collaboration agreements between (otherwise) competing undertakings for the tendering and execution of public contracts. In my view, these are very positive approaches by the CJEU to the issue of collaboration between tenderers and subcontracting schemes, not least because they are in line with Article 101 TFEU--and particularly 101(3) TFEU--in terms of potential justification of economically efficient instances of cooperation between economic operators.

In that regard, I consider that the CJEU has pushed for the preservation of sufficient space for a competition-law compliant analysis of teaming, joint bidding and subcontracting arrangements, for which I advocate in Public Procurement and the EU Competition Rules, 2nd edn (Oxford, Hart, 2015) 336-340 and 353-355. In particular, I find this development particularly in line with the following arguments (p 294):
... the establishment of grounds for exclusion that tend to narrow down excessively the pool of potential participants in a tender, or that completely exclude a given type or entire category of potential bidders, will need to be scrutinised carefully. This will be one of the cases where the application of the principle of proportionality alone might be insufficient (see above chapter five) and where a purposive interpretation might be required to ensure a more pro-competitive outcome. Additional grounds for exclusion will therefore not only need to be proportionate, but should not generate unnecessary distortions to competition.
The argument can be pushed further to require that the additional rules for the exclusion of tenderers be designed exclusively to prevent undertakings from exploiting certain unlawful competitive advantages in the public procurement setting. As the ECJ has clarified, the purpose of the basic principles of equality and non-discrimination and the ensuing obligation of transparency is to guarantee that ‘tenderers [are] in a position of equality both when they formulate their tenders and when those tenders are being assessed by the contracting authority’.[1] Therefore, the underlying rationale of the system of exclusion of tenderers is to prevent the participation of tenderers that are ex ante advantaged vis-a-vis the rest of competitors from resulting in a breach of the principle of equal treatment. Hence, the additional grounds for exclusion established by Member States should be designed in such a way that only situations under which a potential competitive advantage is clearly envisioned are covered—ie, they should not be designed exclusively in accordance with formal considerations of equality or non-discrimination. Moreover, in their implementation, contracting authorities need to be able to prove the existence of an actual advantage for the candidate or tenderer whose exclusion is being considered,[2] and an opportunity to show that no such advantage exists in the particular instance under consideration should be granted to the affected candidate or tenderer (ie, the establishment of irrebuttable presumptions should not be allowed).[3]
Therefore, it is submitted that it should be expressly recognised and taken into account that the establishment of grounds for exclusion of tenderers other than those listed in article 57 of Directive 2014/24 needs to be based on competition considerations and, more specifically, aimed at preventing the exploitation of actual unlawful competitive advantages by candidates or tenderers—since the establishment of purely formal grounds for the exclusion of tenderers not justified by the existence of associated distortions of competition would unnecessarily restrict access to public procurement.

[1] Case C-19/00 SIAC Construction [2001] ECR I-7725 34; Case C-448/01 EVN and Wienstrom [2003] ECR I-14527 47; and Case C-213/07 Mikhaniki [2008] ECR I-9999 45.
[2] Joined Cases C-21/03 and C-34/03 Fabricom [2005] ECR I-1559 33 and 35; and Case C-213/07 Mikhaniki [2008] ECR I-9999 62. For a recent application of the advantage criterion that, in our view, imposes an exceedingly demanding requirement as regards its proof, see Case T-4/13 Communicaid Group v Commission [2014] pub. electr. EU:T:2014:437.
[3] That would particularly be the case according to the reading of Fabricom made by the EGC, which has considered that the ECJ ‘held that a candidate or tenderer cannot automatically be excluded from a tendering procedure without having the opportunity to comment on the reasons justifying such exclusion’; Joined Cases T-376/05 and T-383/05 TEA–CEGOS [2006] ECR II-205 65. See also Case C-213/07 Mikhaniki [2008] ECR I-9999 69; Case C-538/07 Assitur [2009] ECR I-4219 30; and Opinion of AG Mazák in case C-538/07 Assitur 44 and fn 22, where it is argued that those measures may result in the exclusion of persons whose participation entails no risk whatsoever for the equal treatment of tenderers and the transparency of procedures for the award of public contracts—which is clearly undesirable.

Goodbye to the European Procurement Passport: Hello false claims and/or criminalisation rules?

According to the UK Cabinet Office's latest Progress Update on the Modernisation of the EU Procurement Rules  (, the creation of a new European Procurement Passport (EPP) that the Commission had included in the December 2011 proposal for the modernisation of Directive 2004/18 has been dropped from the compromise text (

This should be seen as a welcome development, since it will finally not increase the red tape involved in public procurement procedures (as anticipated in my  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:

Indeed, as the Cabinet Office stresses, since the information to be included in the EPP is now largely going to be provided by self-declaration with only the winning bidder submitting the documentary evidence (in case the rules of art 57 in the compromise text hold the rest of the EU legislative process), it now seems an unnecessary administrative burden.

However, it should be stressed that self declarations still present some issues, due to the risk of strategic behaviour on the part of bidders. Failure to submit the supporting evidence regarding the information included in a self-declaration is configured exclusively as a (discretionary) exclusion ground under Article 55(3)(f) of the compromise text (which comes to replace the suppressed provisions in article 68 of the December 2011 proposal), in the following terms:
Contracting authorities may exclude or may be required by Member States to exclude from participation in a procurement procedure any economic operator in any of the following situations: [...] (f) where the economic operator has been guilty of serious misrepresentation in supplying the information required for the verification of the absence of grounds for exclusion or the fulfilment of the selection criteria, has withheld such information or [is] not able to submit the supporting documents required pursuant to Article 57;
This is in, my opinion, the proper treatment of this circumstance (and clearly better than its treatment as a 'mere' awarding impediment, as initially proposed by the Commission). However, I think that it is worth stressing that this rule still leaves excessive uncovered risks in case of strategic behaviour by 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). Even if the buying body can (self)protect its interests by excluding the tenderer [and, possibly, by pushing for an extended exclusion from all procurement procedures, depending on the national rules on debarment--which will need to be developed to implement art 57(4) of the compromise text] there is a risk of uncompensated damages and, implicilty, scope for criminal proceedings for fraud (or related) offences.

Therefore, I still think that it is necessary to strengthen the consequences of failing to produce supporting evidence for the self-declarations (and, more generally, of providing false information), which should not only be a ground for exclusion, but also be reinforced by rules that set it as a head of damage that allowed 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, when exclusion does not seem to be an apropriate remedy.