European Business Law, the fourth volume in our series, shows how the European authorities simultaneously abolish all restrictions on access to and exercise of economic activities and support the growth of domestic markets, through the harmonization the internal legislation or the enactment of genuinely unified regulations.

European Business Law

The participation of economic operators in a call for tender depends, first of all, on the procedure chosen by the contracting authority. Article 26 of Directive No 2014/24, like Directive No 2004/18, provides for various possibilities: open procedures (whereby any interested economic operator may submit a tender) , restricted procedures (in which any economic operator may ask to participate but o …

Participation in a public contract

The participation of economic operators in a call for tender depends, first of all, on the procedure chosen by the contracting authority. Article 26 of Directive No 2014/24, like Directive No 2004/18, provides for various possibilities: open procedures (whereby any interested economic operator may submit a tender) , restricted procedures (in which any economic operator may ask to participate but only those economic operators invited by the contracting authority may submit a tender) , negotiated procedures without prior publication (limited to cases where publication is either not possible, for reasons of extreme urgency brought about by events unforeseeable for and not attributable to the contracting authority, or where it is clear from the outset that publication would not trigger more competition or better procurement outcomes) , competitive dialogues (in which any economic operator may request to participate and whereby the contracting authority conducts a dialogue with the candidates admitted to that procedure, with the aim of developing one or more suitable alternatives capable of meeting its requirements and on the basis of which the candidates chosen are invited to tender) . The directive provides for additional procedures: the competitive procedure with negotiation (for situations where open or restricted procedures without negotiations are not likely to lead to satisfactory procurement outcomes or where an open or restricted procedure resulted only in irregular or unacceptable tenders  in particular in the case of complex purchases such as sophisticated products, intellectual services, for example some consultancy services, architectural services or engineering services, or major information and communications technology projects)   and innovation partnerships (allowing contracting authorities to establish a long-term innovation partnership for the development and subsequent purchase of new, innovative products, services or works provided that such innovative products, services or works can be delivered to agreed performance levels and costs, without the need for a separate procurement procedure for the purchase) .

 Even if Directive No 2014/24 does not pursue an objective of full harmonization of the system of public contracts in the Member States, the latter are authorized to use only the procedures exhaustively listed in Article 26 .

 Submitted offers must fulfill the conditions that the contracting authority has set in the contract notice or in the specifications, in accordance with the qualitative criteria defined by Article 58 and the causes of exclusion provided for by Article 57 . Member States cannot require references other than those expressly defined in the directive . In the tender specifications relating to the award of a public contract, the contracting authority may not impose on a tenderer which relies on the capacities of other entities the obligation, before the contract is awarded, to conclude a cooperation agreement with those entities or to form a partnership with them, insofar as the tenderer is free to choose the legal nature of the links it intends to establish with those other entities . The review of applications must not give the contracting authority the opportunity to introduce discrimination. Thus, the tenderer cannot be required to be registered with the “Ordre des architectes” in order to favor national architects . But a bid that does not meet the mandatory conditions laid down in the specifications may be set aside without taking into account the circumstances having surrounded the awarding procedure . However, a tenderer who does not fulfill the technical requirements may have an interest in asking for the annulment of the awarding decision where there is a suspicion that the successful tenderer itself could be incapable of fulfilling the contract conditions . 

Article 57 of the directive sets forth the list of the grounds for exclusion from participation in a call for tender relating to the personal situation of the candidate or tenderer (violation of probity, bankruptcy etc.), as well as admissible evidence. Although the grounds for exclusion of a contractor from participation in a public contract set forth in the directive on the works contracts are exhaustively set , Member States are authorized to lay down other measures which are intended to guarantee compliance with the principles of equal treatment of tenderers and transparency, provided that they do not go beyond what is necessary to reach that objective . National legislation may therefore allow the contracting authority to take into consideration, in accordance with the conditions it has laid down, a criminal conviction of the director of a tendering company, even if the conviction is not yet final, for an offense concerning the professional conduct of that company and to exclude that company from taking part in the tendering procedure at issue, on the ground that, by failing to declare the conviction which was not yet final, it had not fully and effectively dissociated itself from that director’s activities . However, national legislation which provides in a general and abstract manner for the automatic exclusion of the economic operator where a failure to fulfill obligations under environmental, social and labor law is established in relation to one of the subcontractors indicated in that operator's tender, irrespective of the circumstances which led to that failure, and thus establishes an irrebuttable presumption that the economic operator must be excluded for any failure attributable to one of its subcontractors, without leaving the contracting authority the option of assessing, on a case-by-case basis, the particular circumstances of the case or the economic operator being able to demonstrate its reliability despite the finding of that failure, is incompatible with EU law .

Pursuant to Article 58 of the directive, the contracting authority can require that candidates or tenderers possess the economic and financial capacities to perform the contract. For that purpose, contracting authorities may require, in particular, that economic operators have a certain minimum yearly turnover, including a certain minimum turnover in the area covered by the contract, that they provide information on their annual accounts showing the ratios, for instance, between assets and liabilities and that they be covered by an appropriate level of professional risk indemnity insurance. The minimum yearly turnover that economic operators are required to have shall not exceed two times the estimated contract value, except in duly justified cases . Proof of economic and financial standing may be furnished by appropriate statements from banks or, where necessary, evidence of relevant professional risk indemnity insurance; the presentation of balance-sheets or extracts from the balance-sheets; a statement of overall turnover and, where appropriate, of turnover in the area covered by the contract for a maximum of the last three financial years available, depending on the date on which the undertaking was set up or the operator started trading, as far as the information on these turnovers is available. Under Article 63 the economic operator may also rely on the capacities of other entities, regardless of the legal nature of the links which it has with them, if it is proven that it will have at its disposal the resources necessary, for example, by producing an undertaking by those entities . Where the economic operator is unable to provide the references requested by the contracting authority, it is also allowed to prove his economic or financing standing by any other document which the contracting authority considers appropriate . However, a Member State can fix a maximum value for works which may be carried out at one time by tenderers to a call for tender in order to guarantee their financial and economic standing . It can also require a minimum level of economic and financial standing with reference to one or more items on the balance sheet provided that they are objectively such as to provide information on such standing and that the threshold thus fixed actually constitutes a positive indication of the existence of a sufficient economic and financial basis for the performance of that contract . Furthermore, where the contracting authority has required that economic operators  have a certain minimum turnover in the area covered by the public  contract in question, an operator may, in order to prove its economic  and financial standing, rely on the income received by a temporary group  of undertakings to which it belonged only where it actually  contributed, in the context of a specific public contract, to the  performance of an activity of that group analogous to the activity which  is the subject matter of the public contract for which that operator  seeks to prove its economic and financial standing .

In addition to his economic and financial standing, the tenderer must, according to Article 58, show his technical and/or professional abilities which are assessed and examined in accordance with the list set forth in Annex XII, Part II of the directive . Although the required references must appear in the contract notice, a general reference, such as the operator's specific background, a criterion which is inseparable from the very notion of suitability, must not necessarily appear in the notice . Article 63 also allows an economic operator, for a particular contract, to rely on the capacities of other entities, regardless of the legal nature of the links which it has with them. It must in that case prove to the contracting authority that it will have at its disposal the resources necessary for the execution of the contract, for example, by producing an undertaking from those entities to place the necessary resources at the disposal of the economic operator . Even in the context of a negotiated procedure, the contracting authority is not authorized to conduct negotiations with tenderers in respect of tenders which do not comply with the mandatory requirements laid down in the technical specifications relating to the contract .

In the context of a restricted procedure, the number of undertakings which a contracting authority intends to invite to tender cannot be lower than five in order to ensure genuine competition . 

In the competitive procedures with negotiation any economic operator may submit a request to participate in response to a call for competition. Only those economic operators invited by the contracting authority following its assessment of the information provided may submit an initial tender however (Art. 29). The contracting authorities should indicate beforehand the minimum requirements which characterize the nature of the procurement and which should not be changed in the negotiations. Negotiations are aimed at improving the tenders so as to allow contracting authorities to buy works, supplies and services perfectly adapted to their specific needs and may therefore concern all characteristics of the purchased works, supplies and services including, for instance, quality, quantities, commercial clauses as well as social, environmental and innovative aspects, insofar as they do not constitute minimum requirements.

Innovation partnerships are based on the same terms as competitive procedures with negotiation. The contracting authority publishes a contract notice which sets out the qualitative selection criteria and defines the minimum requirements to be met by all tenders. Any economic operator may submit a request to participate in response to a contract notice. The contracting authorities negotiate with tenderers the initial and all subsequent tenders submitted by them, except for the final tenders to improve the content thereof. The minimum requirements and the award criteria are not  subject to negotiations.

Pursuant to Article 59 of Directive No 2014/24, the submission of a request to participate in a public contract is done through use of a European Single Procurement Document (ESPD) consisting of an updated self-declaration as preliminary evidence in replacement of certificates issued by public authorities or third parties confirming that the relevant economic operator fulfills the relevant conditions . The ESPD identifies  “the public authority or third party responsible for establishing the supporting documents and contains a formal statement to the effect that the economic operator will be able, upon request and without delay, to provide those supporting documents”. The ESPD is drawn up on the basis of a standard form and is provided exclusively in electronic form. This information is stored by the Member States in a database accessible to the contracting authorities of other Member States .

Case C-225/98 Commission v France [2000] ECR I-7445, LawLex200700001613JBJ.

Case T-40/01 Scan Office Design v Commission [2002] ECR II-5043, LawLex200900001354JBJ: where it is established that the tenderer cannot meet the technical requirements of the contracting authority, the various irregularities committed by that authority in the tender procedure are irrelevant.

Case T-139/99 AICS v Parliament [2000] ECR II-2849, LawLex200900001259JBJ.

Case C-199/15 Ciclat Soc. coop., Judgment of 10 November 2016, LawLex201600002122JBJ: EU law does not preclude nationla legislation which obliges a contracting authority to consider an infringement relating to the payment of social security contributions, recorded in a certificate requested by a contracting authority on its own initiative and issued by the social security institutions, to be a ground for exclusion, where that infringement existed on the date of the participation in a tender procedure, even if it no longer existed at the time of the award or of the verification carried out on the contracting authority’s own initiative. 

Case C-21/03 Fabricom [2005] ECR I-1559, LawLex200900000354JBJ, holding that although an entity having carried out certain preparatory works in connection with a call for tender is not in the same situation as the other tenderers, the rule which prevents it from submitting a tender and which does not allow it to establish that it has not obtained a competitive advantage, is disproportionate. C-226/04 La Cascina and others [2006] ECR I-1347, LawLex200900001293JBJ; C-213/07 Michaniki [2008] ECR I-9999, LawLex200900002282JBJ, holding incompatible a law which established an irrebuttable presumption that the status of owner, partner, main shareholder or management executive of an undertaking active in the media sector was incompatible with that of owner, partner, main shareholder or management executive of an undertaking to which the State entrusted the performance of public contracts; C-538/07 Assitur [2009] ECR I-4219, LawLex201100000272JBJ, regarding a national rule which laid down an absolute prohibition on participation in a same tendering procedure by a parent company and its subsidiary, without allowing them an opportunity to demonstrate that no influence was exercised on each other; Case C-465/11 Forposta SA, Judgment of 13 December 2012, LawLex201200002451JBJ: a regulation providing that grave professional conduct leads to the automatic exclusion of the economic operator from a procedure for the award of a public contract; Case C-425/14 Impresa Edilux (ès qual.), Società Italiana Costruzioni e Forniture Srl (SICEF), Judgment of 22 October 2015, LawLex201500001330JBJ, compatibility with EU law of a national rule under which a contracting authority may provide that a candidate or tenderer be automatically excluded from a tendering procedure relating to a public 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 organized crime from infiltrating the public procurement sector, insofar as that protocol contains declarations that the candidate or tenderer is not in a relationship of control or of association with other candidates or tenderers.

Case C-178/16 Impresa di Costruzioni Ing. E. Mantovani SpA, Judgment of 20 December 2017, LawLex201800000478JBJ.

C-395/18 Tim SpA - Direzione e coordinamento Vivendi SA, Judgment of 30 January 2020, LawLex202000000147JBJ, holding that the specific objective of Article 57(4)(a) of Directive No 2014/24, which is to ensure compliance with the obligation under environmental, social and labor law read in conjunction with the objective relating to the reliability of the economic operator referred to in recital 101 of that directive, must enable the Member States to grant the contracting authority the option, or even the obligation, to regard as reliable only those economic operators who, when drawing up their tenders, have exercised the care and diligence required to ensure that, in the course of performance of the contract, the obligations concerned are complied with in all circumstances, whether by themselves or by the subcontractors to whom they intend to entrust part of that performance.

E.g. relating to the special risks attached to the nature of the works, services or supplies. The contracting authority shall indicate the main reasons for such a requirement in the procurement documents or the individual report.

This option is not open to tenderers in the context of a service contract to which Annex B of Directive No 2004/18 applies, see Case C-95/10 Strong Segurança SA [2011] ECR I-1865, LawLex201100001072JBJ.

For an application, Case T-169/00 Esedra v Commission [2002] ECR II-609, LawLex200900001279JBJ.

Case 27/86 CEI v Association intercommunale pour les autoroutes des Ardennes [1987] ECR 3347, LawLex200900001800JBJ.

Case C-218/11 Judgment of 18 October 2012, Édukövízig and Hochtief Construction, LawLex201200002241JBJ.

Case C-927/19 ‘Klaipėdos regiono atliekų tvarkymo centras’ UAB and others, Judgment of 7 September 202, LawLex202100005500JBJ.

A list of the works carried out over the past five years; a list of the principal deliveries effected or the main services provided in the past three years, with the sums, dates and recipients, whether public or private, involved; an indication of the technicians or technical bodies involved, especially those responsible for quality control; a description of the technical facilities and measures used by the supplier or service provider for ensuring quality and the undertaking's study and research facilities; where the products or services to be supplied are complex or, exceptionally, are required for a special purpose, a check carried out by the contracting authorities or on their behalf by a competent official body of the country in which the supplier or service provider is established, subject to that body's agreement; an indication of the educational and professional qualifications of the service provider or contractor and/or those of the undertaking's managerial staff and, in particular, those of the person or persons responsible for providing the services or managing the works; for public works contracts and public services contracts, and only in appropriate cases, an indication of the environmental management measures that the economic operator will be able to apply when performing the contract; a statement of the average annual manpower of the service provider or contractor and the number of managerial staff for the last three years; a statement of the tools, plant or technical equipment available to the service provider or contractor for carrying out the contract; an indication of the proportion of the contract which the services provider intends possibly to subcontract; and, with regards to the products to be supplied: samples, descriptions and/or photographs, the authenticity of which must be certified if the contracting authority so requests, certificates drawn up by official quality control institutes or agencies of recognized competence attesting the conformity of products clearly identified by references to specifications or standards.

Case 31/87 Beentjes v Netherlands State [1988] ECR 4635, LawLex200900002329JBJ.

Case C-389/92 Ballast Nedam Groep v Belgische Staat [1994] ECR I-1289, LawLex200900000636JBJ; and, in the same case, C-5/97 Ballast Nedam Groep v Belgische Staat [1997] ECR I-7549, LawLex200900000990JBJ: a holding may submit an offer even if the contract will be performed by its subsidiaries; See, also, C-176/98 Holst Italia [1999] ECR I-8607, LawLex200700001801JBJ and C-314/01 Siemens and ARGE Telekom [2004] ECR I-2549, LawLex200900001462JBJ: resorting to subcontractors.

Case C-561/12 Nordecon, Judgment of 5 December 2013, LawLex201300001741JBJ.

Case C-225/98 Commission v France [2000] ECR I-7445, LawLex200700001613JBJ; see, also, C-138/08, LawLex201100000497JBJ, extending that principle to the negotiated procedure.

it is not in one of the situations referred to in Article 57 in which economic operators shall or may be excluded; it meets the relevant selection criteria that have been set out pursuant to Article 58; where applicable, it fulfils the objective rules and criteria that have been set out pursuant to Article 65 relative to the reduction of the number of otherwise qualified candidates to be invited to participate.

A complete and up-to-date list of databases containing relevant information on economic operators is made available by each Member States in the European repository of certificates database, e-Certis.

Case C-305/08 CoNISMa [2009] ECR I-12129, LawLex201100000480JBJ.

It should be noted that Article 45 does not provide for uniform application of the grounds of exclusion it sets at EU level, Case C-226/04 La Cascina and others [2006] ECR I-1347, LawLex200900001293JBJ.

Case 76/81 Transporoute v Ministère des travaux publics [1982] ECR 417, LawLex200900002159JBJ; and regarding technical capacities, C-225/98 Commission v France [2000] ECR I-7445, LawLex200700001613JBJ.

Case  C-234/14 Ostas celtnieks Sia, Judgment of 14 January 2016, LawLex201600000060JBJ.

European Business Law

295. Participation in a public contract

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295. Participation in a public contract

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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