Regulation 60 – Means of proof

Commentary

Regulation 60 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 Regulation 44 PCR2015 on test reports, certificates and other means of proof connected to technical specifications and must be subjected to the same possibilistic interpretation. It is also interesting to note the lack of articulation between this Regulation and the preceding one, bearing in mind that the ESPD (and the fact-checking contained therewith) appears to be the preferred method for dealing with qualification and selection. It would seem that the rules in Regulation 60 only apply where the contracting authority is not using the ESPD or is using it and decides to carry out checks on the veracity of the self-declarations. This could have been clarified.

As regards the formalities associated to the exclusion and qualitative selection of candidates and tenderers, Regulation 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 Regulation 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. This is particularly clear from Regulation 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‘ paragraphs 58(16) and 62 PCR2015.

The rules in Regulation 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 Regulation 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).

Regulation 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 Regulation 44 PCR2015, we 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 Regulation 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‘.

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.

Proposed citation: Albert Sanchez-Graells & Pedro Telles, (2016) Commentary to the Public Contracts Regulation 2015, available at: www.pcr2015.uk.

Last modified: September 5, 2016 by Pedro Telles

General principles

60.—(1) —Contracting authorities may require the certificates, statements and other means of proof referred to in this regulation as evidence for the absence of grounds for exclusion under regulation 57 and for the fulfilment of the selection criteria.

(2) Contracting authorities shall not require from economic operators means of proof other than those referred to in this regulation and in regulations 58(16) and 62.

(3) In respect of regulation 63, economic operators may rely on any appropriate means to prove to the contracting authority that they will have the necessary resources at their disposal.

Proving the absence of grounds for exclusion

(4) Contracting authorities shall accept the following as sufficient evidence that none of the cases specified in regulation 57 apply to the economic operator:—

(a) as regards regulation 57(1) and (2), the production of an extract from the relevant register, such as judicial records or, failing that, of an equivalent document issued by a competent judicial or administrative authority in the member State or country of origin or the country where the economic operator is established showing that those requirements have been met;

(b) as regards regulation 57(3), (4) and (8)(b), a certificate issued by the competent authority in the member State or country concerned.

(5) Where the member State or country in question does not issue such documents or certificates, or to the extent that these do not cover all the cases specified in regulation 57(1) to (4) and (8)(b), 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.

Proving economic and financial standing

(6) Proof of the economic operator’s economic and financial standing may be provided by one or more of the following references:—

(a) appropriate statements from banks or, where appropriate, evidence of relevant professional risk indemnity insurance;

(b) the presentation of financial statements or extracts from the financial statements, where publication of financial statements is required under the law of the country in which the economic operator is established;

(c) a statement of the undertaking’s overall turnover and, where appropriate, of turnover in the area covered by the contract for a maximum of the last 3 financial years available, depending on the date on which the undertaking was set up or the economic operator started trading, as far as the information on those turnovers is available.

(7) Where the references mentioned in paragraph (6) are not appropriate in a particular case, the contracting authority may require the economic operator to provide other information to prove its economic and financial standing.

(8) Where, 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.

Proving technical and professional ability

(9) Proof of the economic operator’s technical and professional ability may, subject to regulation 58(16), be provided by one or more of the following means, in accordance with the nature, quantity or importance, and the use, of the works, supplies or services:—

(a) the following lists:—

(i) a list of the works carried out over at the most the past 5 years, accompanied by certificates of satisfactory execution and outcome for the most important works; but, where necessary in order to ensure an adequate level of competition, contracting authorities may indicate that evidence of relevant works carried out more than 5 years before will be taken into account;

(ii) a list of the principal deliveries effected or the main services provided over at the most the past 3 years, with the sums, dates and recipients, whether public or private, involved; but, 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 3 years before will be taken into account;

(b) an indication of the technicians or technical bodies involved, whether or not belonging directly to the economic operator’s undertaking, especially those responsible for quality control and, in the case of public works contracts, those upon whom the contractor can call in order to carry out the work;

(c) a description of the technical facilities and measures used by the economic operator for ensuring quality and the undertaking’s study and research facilities;

(d) an indication of the supply chain management and tracking systems that the economic operator will be able to apply when performing the contract;

(e) 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 authority, or on its behalf, by a competent official body of the country in which the supplier or service provider is established, subject to that body’s agreement, on the production capacities of the supplier or the technical capacity of the service provider and, where necessary, on the means of study and research which are available to it and the quality control measures it will operate;

(f) the educational and professional qualifications of the service provider or contractor or those of the undertaking’s managerial staff, provided that they are not to be evaluated as an award criterion;

(g) an indication of the environmental management measures that the economic operator will be able to apply when performing the contract;

(h) a statement of the average annual manpower of the service provider or contractor and the number of managerial staff for the last 3 years;

(i) a statement of the tools, plant or technical equipment available to the service provider or contractor for carrying out the contract;

(j) an indication of the proportion of the contract which the economic operator intends possibly to subcontract;

(k) with regard to the products to be supplied:—

(i) samples, descriptions or photographs, the authenticity of which must be certified where the contracting authority so requests;

(ii) certificates drawn up by official quality control institutes or agencies of recognised competence attesting the conformity of products clearly identified by references to technical specifications or standards.