Regulation 64 – Recognition of official lists of approved economic operators and certification by certification bodies

Commentary

Regulation 64 PCR2015 transposes Article 64 of Directive 2014/24/EU regarding the rules applicable to the recognition of official lists of approved economic operators and certification by certification bodies for the purposes of qualitative selection..  The purpose of these registers and lists is to reduce transaction costs and simplifying the documentation requirements for participation in tender procedures. They provide undertakings with the possibility of getting registered/certified for a period of time, participating in any procedure they may want during that period while providing the necessary evidence only once. For the contracting authority, they also provide some proof of suitability which can be particularly helpful in cross-border situations.

The UK (England, Wales and Northern Ireland) has decided not to create its own official list or certification system (Regulation 64(10) PCR2015) and, consequently, the rules only apply to the recognition in the UK of inscription in official lists or certification obtained in other Member States.

While by definition it is expected the contracting authority will accept the foreign certificate, paragraph 3 allows it to ask for the underlying evidence in case there is justification to do so.

As with standards in technical specifications, the participation and certification of economic operators is subject to “or the equivalent test”, ie they cannot be forced to be in said list or have the certificate but can prove they comply with the requirements covered by them (paragraphs 7 and 8).

For a detailed view of Article 64 of Directive 2014/24/EU, please see A Sanchez Graells  Public Procurement and the EU Competition Rules, 2nd edn (Oxford, Hart, 2015)323-325.

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

Last modified: September 5, 2016 by Pedro Telles

64.—(1) Economic operators registered on an official list or having a certificate issued by a certification body may, for each contract, submit to the contracting authority a certificate of registration issued by the competent authority or the certificate issued by the certification body.

(2) A certificate of either kind shall constitute a presumption of suitability with regard to requirements for qualitative selection encompassed by the certificate or the official list to which it relates.

(3) Information that can be deduced from registration on official lists or certification by certification bodies shall not be questioned without justification.

(4) With regard to the payment of social security contributions and taxes, an additional certificate may be required of any registered economic operator whenever a contract is to be awarded.

(5) In relation to an official list established or maintained by a member State other than the United Kingdom, paragraphs (1) and (3) apply only in favour of economic operators established in the member State holding the official list.

(6) The requirements of proof for the criteria for qualitative selection encompassed by the official list or certificate shall comply with regulation 60 and, where appropriate, regulation 62.

(7) Economic operators shall not be obliged to be registered on an official list or to provide a certificate issued by a certification body in order to participate in a public contract.

(8) Contracting authorities shall—

(a) recognise equivalent certificates from bodies established in other member States, and

(b) accept other equivalent means of proof.

(9) In this regulation—

official list” means an official list of approved contractors, suppliers or service providers established or maintained by a member State under to Article 64 of the Public Contracts Directive; and

certification body” means a certification body complying with European standards of certification, and “certificate issued by a certification body” means a certificate issued by such a body in accordance with certification arrangements for which a member State has provided for the purposes of Article 64 of the Public Contracts Directive.

(10) For the purposes of this regulation, no official list or certification arrangements are established, maintained or provided for in relation to the jurisdictions to which this Part extends and, accordingly, in paragraph (9), “member State” includes the United Kingdom only insofar as the official list or the certification arrangements are established, maintained or provided for in respect of any other jurisdiction.