Decision of 9th February 2023 (case 025/21.2BEPRT), Portugal
Article(s) in Directive 2014/24/EU: Arts. 63, 59 and recital 84
Topic: formalities regarding a subcontractor; moment of presentation of the European Single Procurement Document; declaration to perform the contract by the future subcontractor.
Member State: PT
Court/rev. board: Supreme Administrative Court (SAC)
1. IMPLEMENTATION / RELEVANT NATIONAL LEGISLATION
Articles 57, 70, 77, 81, 92 and 93 of the Public Contracts Code (PCC).
2. FACTS
The present case concerned a public tender in which one of the bidders, which saw his offer excluded, challenged the exclusion and the decision to award the contract, claiming for its annulment and the condemnation of the successful bidder to approve new tender documents for the procedure (correcting the detected illegalities) and undertake all subsequent acts and diligences needed for carrying out the contracting procedure. This excluded bidder claimed that the award decision was invalid, since the jury of the procedure understood that its proposal had been presented in the form of a group of economic operators, which was not the case since a proposal presented by a group of economic operators (“joint venture”) must, in accordance with article 57(5) of the PCC, be signed by the representative of its members or by all the members or representatives of the group, – which was not verified in this case, so, the exclusion took place.
The judgment under appeal did not grant the request, deciding, under article 168(4) of the PCC, that the applicant was obliged to present, with the proposal, a declaration of commitment of the subcontractor.
Another discussion concerned the model of evaluation of offers set forth in the tender documents. The claimant argued that the model was in breach of article 139 of the PCC (with no equivalent in the Directive) and the principles of transparency and competition, as it proves to be a legitimate criterion within the scope of the margin of technical appreciation, granted by the tender documents, to the jury of the procedure. This topic will not be further analyzed in this comment.
3. JUDGMENT
This is the national case which led to the European Court of Justice’s Order in case C-469/22, according to which “article 63 of Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC, read in conjunction with Article 59 and recital 84 of that directive, must be interpreted as precluding national legislation under which an economic operator which intends to use the capacities of another entity in order to perform the contract is required to submit the qualification documents of that entity and the declaration of commitment it has made only after the contract in question has been awarded.”
As a result of the above-mentioned CJEU decision, article 70(2)(a) of the PCC must be interpreted in accordance with the provisions of article 63 of Directive 2014/24/EU and, in this sense, an offer in which the economic operator intends to use the capacities of another entity for the performance of the contract must be excluded if it does not present, with the proposal, the authorization documents of that entity and its declaration of commitment – that is, if it does not provide proof that “it will have the necessary resources to fulfill the selection criteria set out” and does not allow the contracting authority to verify, in accordance with articles 59 to 61 of Directive 2014/24/EU, whether those entities fulfill the relevant selection criteria and whether or not there are grounds for their exclusion – under the terms of article 57 of the said Directive.
Incidentally, the SAC notes that the CJEU’s decision clarifies that this requirement is not even a complex bureaucratic procedure, consisting of an element of admissibility of tenders neither disproportionate nor unreasonable in terms of guaranteeing the principle of competition, since the economic operator can present a European Single Public Procurement Document, consisting of an updated self-declaration, in order to verify compliance with the requirements of article 57 of Directive 2014/24/EU, without prejudice to the contracting entity – that, at any time, may demand the supporting documents it deems relevant.
Commentary: The question needing answer from the Court was weather a competitor, in the context of a public tender, which indicates that will require cooperation by a subcontractor, is – or not – obliged to present, along with the proposal, the qualification documents of that subcontractor and the declaration according to which the subcontractor is bound to the performance of that part of the service.
The issue is, indeed, relevant, due to the dubious nature of the Portuguese law on this matter. The relevant provisions of the national law seem to indicate that, in open procedures (differently from restricted procedures), when a bidder intends to resort to a third company to perform the contract (in the case at hand, as a subcontractor), the bidder is only obliged to present the declaration of commitment and the European Single Public Procurement Document regarding that subcontractor after the award of the contract.
However, article 63 of Directive 2014/24/EU, appears to impose a different rule, insofar as it considers that the use, by the economic operator, of the technical skills of other entities, regardless of the type of procedure in question, imposes on the bidder to prove to the contracting authority, during the tender procedure, that he will have the necessary resources for this purpose – so, these documents should be presented with the offer, not afterwards.
In the previous CJEU judgment of 03/06/2021 (Case C-210/20), the Court, applying the principle of proportionality, highlighted that the presentation of the elements regarding the subcontractors with the initial offer consists of a consequence of the principles of equal treatment and transparency, essential for the much-needed competition in the evaluation of proposals; so, if the subcontractor does not meet the legal requirements to be able to be a party to a public contract (or a subcontractor), the bid must be excluded.
In agreement with that jurisprudence, it seems to us that an interpretation of the national rules according to which, in public tender procedures, both the qualification documents of the subcontractor and the documents proving their commitment to performing the relevant part of the service contained in the offer are only required after the contract has been awarded, may, indeed, violate, both article 63 of Directive 2014/24/EU, and the principles of equal treatment and transparency, as two dimensions of the principle of competition in the evaluation of tender proposals.
