Regulation 62 – Quality assurance standards and environmental management standards

Commentary

Regulation 62 PCR2015 sets out substantive and documentary requirements linked to determining compliance with quality assurance standards and environmental management standards, in terms very close to Article 62 of Directive 2014/24/EU.

This regulation establishes three main rules: (1) when imposing compliance with quality assurance and/or environmental management, contracting authorities should refer to the relevant European standards and require certificates of compliance issued by accredited bodies; (2) contracting authorities shall recognise equivalent certificates from bodies established in other Member States; and (3) where economic operators have not had the possibility to obtain the required certificates within the time limits set by the contracting authorities for reasons not attributable to the economic operator concerned, contracting authorities shall accept other evidence of equivalent compliance, provided that the economic operator proves that the proposed quality assurance and/or environmental management measures comply with the required standards.

Regulation 62 PCR2015 (and, originally, Article 62 of Directive 2014/24/EU) fundamentally consolidate the rules in Arts 49 and 50 of Directive 2004/18/EC, with some updates to the standards referred to and with some changes in drafting, the only of which seems relevant is that contracting authorities must now only accept other evidence of equivalent quality assurance standards and environmental management standards where the economic operator concerned has no access to such certificates, or no possibility of obtaining them within the relevant time limits for reasons that are not attributable to that economic operator. This seems to reduce the scope for the submission of equivalent certificates in some instances and could be unduly restrictive of competition. However, this effect will largely depend on the interpretation given to this ‘waiver clause’, whereby the contracting authority can reject to take into consideration alternative means of proof. 

Once more, contracting authorities are bound to follow a possibilistic approach and be flexible when it comes to determining compliance with quality assurance and environmental management requirements (see also Regulations 44 and 60 PCR2015) This is particularly important when the environmental management and/or quality assurance requirements are linked to processes and certificates that would impact the economic operator beyond the scope of the contract—ie, when certification exclusively for the purposes of the contract is not possible because the systems needed affect the whole of the undertaking’s activities. 

This is an issue very closely related to the acceptable award criteria under Regulation 67 PCR2015 [CROSSREF]. Given that such provision requires many other comments, please see A Sanchez-Graells,  Public Procurement and the EU Competition Rules, 2nd edn (Oxford, Hart, 2015) 387-88.

Last modified: September 5, 2016 by Pedro Telles

62.—(1) —Contracting authorities shall, where they require the production of certificates drawn up by independent bodies attesting that the economic operator complies with certain quality assurance standards, including on accessibility for disabled persons, refer to quality assurance systems based on the relevant European standards series certified by accredited bodies.

(2) Contracting authorities shall recognise equivalent certificates from bodies established in other member States.

(3) Contracting authorities shall also accept other evidence of equivalent quality assurance measures where the economic operator concerned had no possibility of obtaining such certificates within the relevant time limits for reasons that are not attributable to that economic operator, provided that the economic operator proves that the proposed quality assurance measures comply with the required quality assurance standards.

(4) Where contracting authorities require the production of certificates drawn up by independent bodies attesting that the economic operator complies with certain environmental management systems or standards, they shall refer to—

(a) the Eco-Management and Audit Scheme of the EU,

(b) other environmental management systems as recognised in accordance with Article 45 of Regulation (EC) No 1221/2009(1), or

(c) other environmental management standards based on the relevant European or international standards by accredited bodies,

and shall recognise equivalent certificates from bodies established in other member States.

(5) Where an economic operator had demonstrably no access to the certificates referred to in paragraph (4), or no possibility of obtaining them within the relevant time limits for reasons that are not attributable to that economic operator, the contracting authority shall accept other evidence of environmental management measures, provided that the economic operator proves that these measures are equivalent to those required under the applicable environmental management system or standard.