(1) Numerus clausus? of selection criteria and minimum ability levels
Article 58(1) of Dir 2014/24 consolidates and somehow clarifies the requirements in Articles 41(1) and 41(2) of Directive 2004/18 as regards the fact that selection criteria can exclusively relate to: i) the suitability to pursue the professional activity concerned, ii) the economic and financial standing, and iii) the technical and professional ability of the economic operator; and that, in any case, the requirements shall be limited to ‘those that are appropriate to ensure that a candidate or tenderer has the legal and financial capacities and the technical and professional abilities to perform the contract to be awarded. All requirements shall be related and proportionate to the subject-matter of the contract’.
However, Ar 58(1) of Dir 2014/24 is not free from interpretive difficulties, since it seems to aim to establish a numerus clausus or exhaustive list of selection criteria when it indicates that ‘Contracting authorities may only impose criteria referred to in paragraphs 2, 3 and 4 of this Article on economic operators as requirements for participation’ (emphasis added). The same issue arises from reg.58(2) PCR2015, which indicates that ‘Contracting authorities may impose on economic operators as requirements for participation only the criteria referred to in paragraphs (5) to (18)’ (emphasis added).
This is not consistent with the open-ended wording of such paragraphs and would contradict the existing case law of the CJEU, which establishes that contracting authorities have wide discretion to set the specific requirements that they consider adequate for the evaluation of the suitability of candidates to perform the contract [Joined Cases 27 to 29/86 CEI and Bellini [1987] ECR 3347 paras 13-15].
Therefore, regardless of the specific drafting, it seems clear that there is actually no numerus clausus of selection criteria , as long as they refer to the suitability to pursue the professional activity concerned, the economic and financial standing, or the technical and professional ability of the economic operator (are related and proportionate to the subject-matter of the contract, and are kept to a minimum in order to take into account the need to ensure genuine competition ).
In any case, where contracting authorities want to establish minimum capacity levels, they have to comply with Art 58(5) of Dir 2014/24 and reg.58(19) PCR2015 [which carry forward the requirements of art 44(2) dir 2004/18] and ‘indicate the required conditions of participation which may be expressed as minimum levels of ability, together with the appropriate means of proof, in the contract notice or in the invitation to confirm interest’.
(2) Suitability to pursue the professional activity concerned
This is now regulated in Art 58(2) of Dir 2014/24, which recasts and keeps the rules of Art 46 of Dir 2004/18 substantially unchanged. In this regard, it may simply be worth noting that, in relation to service contracts, contracting authorities may face difficulties in cases of breach of the Services Directive by Member States that impose excessive professional requirements.
(3) Economic and Financial Standing and its Capping Art 58(3) of Dir 2014/24 provides substantive guidance on the requirements concerned with the economic and financial standing of the economic operator and goes beyond Art 47 of Dir 2004/18, which was limited to regulating the means of proof that could be furnished and had to be accepted by the contracting authority [now regulated in art 60(3) dir 2014/24]. Interestingly, Art 58(3) of Dir 2014/24 focuses on requirements of minimum yearly turnover, which is one of the criteria more widely used in practice.
According to this provision [and reg.58(8) PCR2015], ‘contracting authorities may impose requirements ensuring that economic operators possess the necessary economic and financial capacity to perform the contract’ and, in particular, ‘may require … that economic operators have a certain minimum yearly turnover, including a certain minimum turnover in the area covered by the contract. In addition, contracting authorities may require that economic operators provide information on their annual accounts showing the ratios, for instance, between assets and liabilities. They may also require an appropriate level of professional risk indemnity insurance’.
More importantly, the new rules introduce a cap on economic and financial standing requirements that is particularly addressed to foster SME participation. Indeed, ‘The minimum yearly turnover that economic operators are required to have shall not exceed two times the estimated contract value, except in duly justified cases such as relating to the special risks attached to the nature of the works, services or supplies. The contracting authority shall indicate the main reasons for such requirement in the procurement documents’ (emphasis added). Reg.58(9) PCR2015 replicates the requirement in slightly different words: ‘The minimum yearly turnover that economic operators are required to have shall not exceed twice the estimated contract value, except in duly justified cases ...’ (emphasis added).
However, in order to avoid this becoming the de facto
standard requirement, it is still important to stress that contracting
entities and authorities still have to comply with the requirement of
Art 58(1) of Dir 2014/24, so that—within that limit—the specific requirements set still are ‘strictly proportionate to the subject-matter of the contract’, taking into account the need to ensure genuine competition [art 18 dir 2014/24 and reg.18(2) PCR2015].
This rule must be adjusted where the contract is tendered in lots and, in that case, the cap to double the value ‘shall apply in relation to each individual lot. However, the contracting authority may set the minimum yearly turnover that economic operators are required to have by reference to groups of lots in the event that the successful tenderer is awarded several lots to be executed at the same time’. In cases of framework agreements and dynamic purchasing systems, this cap should be calculated on the basis of expected maximum size of specific contracts [see regs.58(11) to (14) PCR2015].
This rule must be adjusted where the contract is tendered in lots and, in that case, the cap to double the value ‘shall apply in relation to each individual lot. However, the contracting authority may set the minimum yearly turnover that economic operators are required to have by reference to groups of lots in the event that the successful tenderer is awarded several lots to be executed at the same time’. In cases of framework agreements and dynamic purchasing systems, this cap should be calculated on the basis of expected maximum size of specific contracts [see regs.58(11) to (14) PCR2015].
(4) Technical and professional ability and a hidden rule on conflicts of interest
Similarly to the changes introduced in relation to the economic and financial standing, Art 58(4) of Dir 2014/24 goes beyond the documentary requirements in Art 48 of Dir 2004/18 [now in art 60(4) dir 2014/24] and lays down some substantive requirements concerned with the technical and professional ability of economic operators. Generally, this provision indicates that ‘contracting authorities may impose requirements ensuring that economic operators possess the necessary human and technical resources and experience to perform the contract to an appropriate quality standard’ and, in particular, may require ‘economic operators have a sufficient level of experience demonstrated by suitable references from contracts performed in the past’.
Even more specifically, and consolidating the rule in Art 48(5) of Dir 2004/18, Art 56(4) in fine of Dir 2014/24 stresses that ‘[i]n procurement procedures for supplies requiring siting or installation work, services or works, the professional ability of economic operators to provide the service or to execute the installation or the work may be evaluated with regard to their skills, efficiency, experience and reliability’.
Interestingly enough, Art 58(4) includes a rule against conflicts of interest disguised as a requirement of professional ability (which seems to stretch the concept, at least if taken on its ordinary meaning). Indeed, it establishes that ‘A contracting authority may assume that an economic operator does not possess the required professional abilities where the contracting authority has established that the economic operator has conflicting interests which may negatively affect the performance of the contract’ (emphasis added). The same is established in reg.58(17) PCR2015.
This development should be welcome, as it aims to cover a significant gap in the regime of Dir 2004/18, which had no rules concerned with the existence of conflicts of interest (despite mentioning them in the recitals). However, more clarification should have been provided as to the type of conflicts of interest that justify the exclusion of the economic operator on the basis of its lack of professional ability.
In that regard, it is important to stress that Art 24 of Dir 2014/24 defines ‘conflicts of interest’ for other purposes , indicating that it ‘shall at least cover any situation where staff members of the contracting authority or of a procurement service provider acting on behalf of the contracting authority who are involved in the conduct of the procurement procedure or may influence the outcome of that procedure have, directly or indirectly, a financial, economic or other personal interest which might be perceived to compromise their impartiality and independence in the context of the procurement procedure’. However, the conflicts of interest that can affect economic operators are not necessarily identical, nor their mirror image and, consequently, some further clarification will be necessary.