Regulation 19 – Economic operators

Commentary

Regulation 19 is concerned with economic operators and groups of economic operators, and transposes the rules in Art 19 of Directive 2014/24/EU with very minor drafting variations. The rules under Regulation 19 are grouped into two subheadings. Paragraphs 19(1) and (2) are concerned with individual economic operators whereas paragraphs 19(3) to (6) are concerned with groups of economic operators.

Economic operators

Under Regulation 19(1), contracting authorities cannot prevent the participation of economic operators in the tender for service contracts solely on the ground that, under the law of England and Wales, they would be required to be either natural or legal persons. This applies as long as 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 Regulation 19(2), 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. However, under Directive 2014/24/EU such requirement is restricted to public service and public works contracts as well as public supply contracts covering in addition services or siting and installation operations. For all other contracts there is no provision establishing the same.

This is related to the use of specific expertise and experience as an award criterion under Regulation 67(3)(b) and aims to provide contracting authorities with the possibility of ensuring contracts where performance depends on specific skills can be properly facilitated through the selection of an appropriate contractor. In our view, though, those requirements (either under Reg 19(2) or 67(3)) will have to be scrutinized under the principle of proportionality as established by Regulation 18(1).

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 Regulation 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 Regulation 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. Therefore any particular requirement would have to comply with the principle of proportionality set forth in Regulation 18(1) in its necessity component.

Regulation 19(4) determines that contracting authorities may specify how the assessment of compliance with the selection criteria under Regulation 58 will be carried out, provided that this is justified by objective reasons and is proportionate. In a similar vein, Regulation 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 which was commented by Albert here.

Last modified: July 5, 2016 by Pedro Telles

19.—(1) Economic operators that, under the law of the member State in which they are established, are entitled to provide the relevant service, shall not be rejected solely on the ground that, under the law of England and Wales or, as the case may be, Northern Ireland, they would be required to be either natural or legal persons.

(2) In the case of—

(a) public service contracts,

(b) public works contracts, and

(c) public supply contracts which cover in addition services or siting and installation operations, legal persons may be required to indicate, in the tender or the request to participate, the names and relevant professional qualifications of the staff to be responsible for the performance of the contract in question.

Groups of economic operators

(3) 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.

(4) Where necessary, contracting authorities may clarify in the procurement documents how groups of economic operators are to meet the requirements as to economic and financial standing or technical and professional ability referred to in regulation 58 provided that this is justified by objective reasons and is proportionate.

(5) 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.

(6) Contracting authorities may 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.