Judgment of 14th September 2023 of the SAC (case 01418/22.3BELSB), Portugal
Article(s) in Directive 2014/24/EU: Articles 56(3) and 63
Topic: exclusion grounds; subcontracting; declaration of commitment; irregularity
Member State: PT
Court/rev. board: Supreme Administrative Court (SAC)
1. IMPLEMENTATION / RELEVANT NATIONAL LEGISLATION
Articles 72(3) and 168(4) of the PCC
2. FACTS
A group of economic operators presenting an offer in a tender resorted to a third party to carry out part of the services covered by the contract without that third party having declared, regarding a specific certification, before the contracting entity and before the bidding consortium itself, the commitment to unconditionally carry out all those services. The question arose as to whether the public authority can, under Article 72(3) of the PCC, ask for and admit the correction of the tender which did not present the document required by Article 168(4) of the PCC – a document in which the third party undertakes unconditionally to assume the part of the tasks in the contract that the tenderer indicates. Article 72(3) of the PCC is a provision that allows for supplementation and correction of offers, roughly corresponding to Article 56(3) of Directive 2014/24.
3. JUDGMENT
The SAC decided that the lack of the declaration demanded for in Article 168(4) of the PCC consists of a substantial irregularity of the offer – not simply a formal irregularity – that cannot, therefore, be corrected by the contracting authority or the bidder. The Court’s reasoning was the following: contrary to what happens with the Single European Public Procurement Document, that (missing) declaration is not intended exclusively to certify the technical capacity or lack of exclusion grounds of the competitor, insofar as, through it, the third party to whom the bidder turns to perform certain services that are part of the subject of the tender, undertakes, before the contracting authority, and before the bidder himself, to perform those services “unconditionally”. Therefore, that omission can only be qualified as a substantial irregularity, capable of compromising the bidder’s manifestation of a firm, serious and irrevocable desire to enter the contract in accordance with the tender conditions. The above mentioned distinction between “substantial” and “formal” irregularities derives from the fact that Article 72(3) of the PCC only refers to “formal” irregularities as eligible for correction.
Commentary: Article 56(3) of Directive 2014/24/EU determines that “where information or documentation to be submitted by economic operators is or appears to be incomplete or erroneous or where specific documents are missing, contracting authorities may, unless otherwise provided by the national law implementing this Directive, request the economic operators concerned to submit, supplement, clarify of complete the relevant information or documentation within an appropriate time limit, provided that such requests are made in full compliance with the principles of equal treatment and transparency”. This norm, or rather its transposition in the PCC, is considered to be the equivalent, in public procurement, of the general administrative procedure principle that determines the need, for public entities, to ask (in this case, a private group of economic operators) for clarification and completion of documents [in Portugal, article 108(1) of the Administrative Procedure Code, approved by Decree-Law 4/2015, of 11th July]. Concerning the public procurement rules specifically, the PCC demands that the jury of the procedure must ask tenders to, within a maximum of five days, correct formal irregularities, as long as the substantial content of the tender is not altered, and the principles of equality and competition are not affected.
On the European rules on this matter, Article 63(1) of Directive 2014/24/EU clearly determines that the tender “shall prove to the contracting authority that it will have at its disposal the resources necessary, for example, by producing a commitment by those entities to that effect”. The obligation, for the contracting authority, to “verify whether the entities on whose capacity the economic operator intends to rely fulfil the relevant selection criteria and whether there are grounds for exclusion pursuant to Article 57”, does not mean the obligation to exclude these entities when such document or information is not presented.
From the perspective of Portuguese law, which distinguishes between formal and substantial irregularities, as mentioned above, it is highly debatable if such a declaration of commitment consists of a substantial element – and not a merely formal one, as the SAC considered. It could be argued that the role of this declaration is instrumental to the proposal; in this perspective, it would fulfil a relevant substantial purpose, but it is not a substantial element of the offer itself. In addition, it should be stressed that even if the missing declaration could be considered a formal element, it is also debatable if, under the conditions of article 72(3) of the PCC, it could be presented at a later moment, since it is not clear, for example, if the declaration already existed at the time of the offer.
