On 5 January 2016, the European Commission adopted the long-awaited European Single Procurement Document (“ESPD”). The underlying regulation, titled the Commission Implementing Regulation 2016/7 (the “Regulation”) was published in the Official Journal of the European Union on 6 January 2016 and it enters into force on 26 January 2016.
The ESPD’s main aim is to lessen the administrative burden of public procurement procedures by combining bidders’ declarations regarding exclusion grounds and selection criteria into one single document. Additionally, the ESPD will serve as preliminary evidence for the contracting authority that the bidders meet the relevant criteria. In case of EU level public procurements the ESPD will be mandatory, although member states may postpone its use until the national legislation implementing Directive 2014/24/EU enters into force, but no later than 18 April 2016.
Hungary has already implemented the new EU procurement directives with effect from 1 November 2015 (Public Procurement Act, the “PPA”) at which time a substitute document almost identical to the ESPD began being used in Hungarian public tenders. However, in light of the wording of the relevant Hungarian laws, this substitute document could only be used until the Regulation was published. This restriction in the Hungarian law poses a problem because the Regulation will not enter into force until 26 January 2016 (the 20th day after its publication) - meaning that neither the Hungarian substitute document, nor the ESPD is applicable now, which raises the question: what document should be used in Hungarian public procurements during this transition period? Although we are not aware of any relevant legislative proposals to address this issue, we assume that the ESPD will be used from 6 January 2016 onwards, irrespective of the fact that the Regulation has not yet entered into force.
It must be also noted that unfortunately the Hungarian translation of the ESPD is not aligned with the wording of the PPA, which may cause misunderstandings regarding the filling-in of the ESPD. As guidance, both the Regulation and Government Decree No. 321/2015 contain instructions regarding the proper use of the ESPD, although the relevant legal practice has not yet evolved. In order to facilitate the application of the ESPD, the Commission is developing a free online “ESPD Service” (a web-based system designed to create and edit the ESPD), which hopefully will provide aid to the participants of public procurements and facilitate the filling-in of the document.