The Commission Implementing Regulation (EU) 2016/7 establishing the standard form for the European Single Procurement Document (the “Regulation”) states that one of the major objectives of Directives 2014/24/EU and 2014/25/EU is to ease the administrative burdens of contracting authorities, contracting entities and economic operators, especially of small and medium-sized enterprises (SMEs). This objective can be achieved by means of the European single procurement document (ESPD).
It is expected that this document will eliminate the requirements of contracting authorities regarding the filing of certificates and other supporting documents as exclusion and selection criteria.
The new legislation in force, the Public Procurement Law (the “Law”), as well as the Utilities Procurement Law and their application norms refer to the use of the ESPD. However, we note that the new Concession Law does not contain any such reference.
As regards the use of ESPD in those procedures not falling under the applicability of the Law, as their value is below the relevant thresholds, this remains the option of the contracting authorities undertaking those procedures.
The ESPD is a self-declaration by economic operators providing preliminary evidence replacing certificates issued by public authorities or third parties.
In view of a unitary and simplified approach, the ESPD includes also relevant information about entities on whose capacities an economic operator relies, as well as about subcontractors. Therefore, the verification of such information will be carried out together with the verification of the main economic operator and in the same conditions.
Pursuant to the Law, the ESPD includes relevant information regarding the fulfillment by the economic operator of the following conditions: (i) it is not in one of the situations in which economic operators shall or may be excluded; (ii) it meets the relevant capacity criteria; (iii) where applicable, it fulfills the selection criteria established by the contracting authority pursuant to the law.
According to the Regulation, where procurements are divided into lots and selection criteria vary from lot to lot, an ESPD should be filled in for each lot (or group of lots with the same selection criteria). Another rule states that in case the participant economic operator is relying on the capacities of one or more other entities, a separate ESPD setting out the relevant information for each of the entities it relies on shall be submitted to the contracting authority. In the case of common participation in the procurement procedure, a separate ESPD setting out the relevant information must be given for each of the participating economic operators.
The Law expresses that a contracting authority may ask tenderers and candidates at any moment during the procedure to submit all or part of the supporting documents as a proof of the statements made under the ESPD where this is necessary to ensure the proper conduct of the procedure.
The Law allows economic operators to reuse the information that has been provided in an ESPD which has already been used in a previous procurement procedure as long as the information remains correct and continues to be pertinent.
Furthermore, before awarding the contract, the contracting authority shall require the tenderer to which it has decided to award the contract to submit up-to-date supporting documents. It should be taken into account the fact that where the successful tenderer fails to demonstrate the fulfillment of all qualification criteria, the contracting authority is allowed to request supporting documents from the next ranked tenderer.
We note that in recent practice, there have been cases in which contracting authorities have actually required the supporting documents to be provided together with the ESPD. In our view, such practice is not compliant with the Law and is far from its declared scope of reducing the administrative burden.
The practice of the contracting authorities that require the ESPD in a paper-based version is also beyond the scope of the Law. The Law imposes on public procurement procedures to be conducted exclusively by electronic means, except for those cases in which electronic communication is not possible. Furthermore, the application norms of the Law expressly state that the contracting authority must generate the ESPD electronically and the economic operator must submit its offer together with the ESPD in an electronic form.
For further reference regarding the use of the ESPD dedicated to both contracting authorities and economic operators, one may consider consulting the guidance issued by the Romanian National Public Procurement Agency, as well as the dedicated web page of the European Commission – Growth, the European Single Market, Public Procurement, E-procurement.