Regulation 44 – Test reports, certificates and other means of proof
Regulation 44 of the Public Contracts Regulations 2015 (PCR2015) transposes the rules of Article 44 of Directive 2014/24/EU 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). Our comments below focus on two distinct issues. First, on the link between Regulation 44 PCR2015 and technical neutrality in public procurement and, second, on the informational difficulties that contracting authorities face in the practical application of these rules.
Test reports, certificates, other means of proof and technical neutrality
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 prove compliance with the applicable technical specifications (see Regulation 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 Regulation 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 (Regulation 44(1)), and requiring them to accept certificates from equivalent other conformity assessment bodies (Regulation 44(2)); Regulation 44(3) significantly limits the possibilities for contracting authorities to specify exactly and rigidly the documentation they are willing to receive and review. As with Regulation 43, even if the requirement is for the certificate of a specific certifying body (as defined by Regulation (EC) 765/2008), the contracting authority is under the obligation of accepting “equivalent” certificates.
Indeed, Regulation 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 Regulation 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.
Informational difficulties faced by contracting authorities
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 (Regulation 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 Regulation 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. Overall, then, it seems that English and Welsh contracting authorities will not be able to exclude foreign economic operators for not providing certificates from the UK, but will be able to do so if the economic operators did not get an equivalent certificate from their own country. This assumes, of course, that the contracting authority knows that in Slovenia or Sweden there are equivalent certifying bodies and that the economic operator could have had access to the appropriate certificates on time. 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.
Last modified: September 5, 2016 by Pedro Telles
44.—(1) Contracting authorities may require that economic operators 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.
(2) Where contracting authorities require the submission of certificates drawn up by a specific conformity assessment body, certificates from equivalent other conformity assessment bodies shall also be accepted by the contracting authorities.
(3) In paragraphs (1) and (2), “conformity assessment body” means a body that performs conformity assessment activities including calibration, testing, certification and inspection accredited in accordance with Regulation (EC) No 765/2008 of the European Parliament and of the Council(1).
(4) Contracting authorities shall accept appropriate means of proof other than those referred to in paragraphs (1) and (2), such as a technical dossier of the manufacturer, where the economic operator concerned had no access to the certificates or test reports referred to in paragraphs (1) and (2), or no possibility of obtaining them within the relevant time limits, provided that—
(a) the lack of access is not attributable to the economic operator concerned, and
(b) 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.
(1) OJ No L 218, 13.8.2008, p30.