"impact of european union public procurement legislation on the albanian public procurement system" republika e shqip
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- 2015 149 3.3.2.4.c Technical and/or professional ability
- 3.3.2.5 Possibility of requiring economic operators to supplement or clarify evidences When deemed as appropriate, the contracting authority
- 3.3.3 Summary
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2015 148 Furthermore, the Directive(s) 556 provide in this regard for the possibility of an economic operator to rely on the resources of other entities to prove its economic and financial standing. An economic operator, or a group of economic operators, where appropriate and with regard to a specific contract, may rely on the capacities of other entities, regardless of the legal nature of the links that it may have with them. It must in this case prove that it will have at its disposal the resources necessary, for example by producing an undertaking by those entities to that effect 557 . Also, the Directive(s) gives to the economic operator the possibility to prove his economic and financial standing by any other document, which the contracting authority considers appropriate, if, for any valid reason, is unable to provide the references requested by the contracting authority as such 558 . The Albanian legislation, on the other hand, does not explicitly provide for such possibilities. In this context, the only possibility for an economic operator to rely on the capacities of other entities is when they have a legal relation between them, according to the legislation on trade companies 559 . In all other cases, the economic operator should prove that he fulfills by himself the required capacities 560 . economic and financial standing to be applied by taking into account the specific practical context of each case. 556 See article 47/2 and 3 of Directive 2004/18/EC and article 63 of Directive 2014/24/EU. 557 See for example case C-389/92, Ballast Nedam Groep NV v The State (“Ballast Nedam I”) (1994) ECR I-1289, in which the Court held that a holding company that does not itself execute works may not be excluded from participating in public works contracts based on the fact that its subsidiaries, which do carry out the works, are separate legal persons. Furthermore, the ECJ ruled that, in assessing the economic and financial standing and technical capacity of such a firm, account must be taken of the companies belonging to the same group, where the firm in question actually has available the resources of those companies to carry out the work. (In the case C-5/97, Ballast Nedam Groep NV v The State (1997) ECR I-75 the Court made it clear in its ruling that contracting authorities were required to consider the resources of subsidiaries in such circumstances). See also cases C-176/98, Holst Italia v Ruhrwasser AG International Water Management (1999) ECR I- 8607 and C-314/01, Siemens AG Osterreich v Hauptverband der sterreichischen Sozialverischerungstrger (2004) ECR I-2549. 558 See article 47/5 of Directive 2004/18/EC and article 60/3 of Directive 2014/24/EU. 559 See articles 207, 208, 209 of the law no.9901, dated 14.04.2008 “On trade and trade companies” as amended. 560 This stricter approach of PPL is reflected also at the condition of joint ventures among economic operators, applying in a procurement procedure. According to article 74 of the Decision of Council of Ministers No. 914, dated 29.12.2014 “On approval of the public procurement rules”, the members of the joint venture should fulfill all required capacities proportionally with the percentage of their participation in the contract execution. As such they cannot rely on capacities of other members of the joint venture. This stricter provision of the PPL is explained with the need of the contracting authority to put insurance mechanisms for the satisfactory performance of the contract, in relation to the legal and economic environment where this law is applied. Impact of European Union public procurement legislation on the Albanian public procurement system 2015 149 3.3.2.4.c Technical and/or professional ability The specific technical and/or professional ability criteria must be aimed at assessing whether economic operators have the relevant technical and/or professional ability (skills, equipment, tools, manpower, past experience, etc.) to perform the contract to be awarded. According to PPL, the contracting authority may require from the economic operators to prove they have the necessary technical qualifications, the professional and technical competence, the organizational capacity, the equipment and other physical facilities, the managerial capability, reliability, experience and reputation and the necessary personnel to perform the contract as indicated by the contracting authority in the contract notice 561 . Further on in the secondary legislation, these requirements, related to the technical and/or professional ability, are divided and specified according to the nature of the contract: i) works, ii) supplies and iii) services, meaning that specific requirements depend and are different for works, supplies and services. The difference is not in the requirement as such, but mainly in time references and relevant proofs required. Here below, I will analyze the concrete requirements and compare them with relevant requirements provided by the relevant Directives. i) Technical and professional requirement for work contracts 562 With regard to previous experience, the contracting authority shall require similar works for one single object, of an amount not more than 50% of the estimated value of the contract to be procured, carried out in the last three years 563 of the operator’s activity; or similar works up to a total value of the last three years’ work, not lower than the double of the limit value of the contract to be procured. Meeting one of the two above-mentioned conditions shall be the basis for considering a tender as qualified. As evidence of previous experience, the contracting authority shall require certificates of successful completion issued by any public or private entity, stating the value, time and type of work performed. Regarding the technical and professional performance: - Professional licenses in relation to the performance of works, contract object; and/or - A statement on the average labor capacities of the economic operator; and/or - A statement on the means and the technical equipment at the economic operator’s disposal for the execution of the contract 564 . 561 See article 46/1/b of PPL. 562 The same requirements are provided by Directive 2004/18/EC and Directive 2014/24/EU as well (see article 48 and article 58/4 respectively). 564 See article 26 of the Decision of Council of Ministers No. 914, date 29.12.2014 “On approval of the public procurement rules”. Impact of European Union public procurement legislation on the Albanian public procurement system 2015 150 This list of evidence is exhaustive; a contracting authority may apply only the criteria that are derived from such a list. However, within these limits, it is left to the discretion of the contracting authority to determine the specific criteria to apply. In any event, the contracting authority must determine the criteria relating to technical and/ or professional ability to be applied by taking into account the specific practical context of each case. One of the differences noticed between the PPL and the Directive (s) concerns the required time for the past experience. While PPL requires past experience during past three years, Directive 2004/18, accepts it for the past five years 565 , meanwhile Directive 2014/24, does not provide such time limitation at all 566 . ii) Technical and professional requirement for supplies contracts 567 With regard to previous experiences, the contracting authority requires evidence of previous similar contracts carried out in the last three years of the business activity. In any case, the amount shall not be more than 40% of the value of contract to be procured. Evidence of the delivery of supplies must be given by certificates issued by the recipient of goods, and/or sale tax invoices stating clearly dates, sums and the amount of supplies. In case of supply contracts, the contracting authority may request from economic operators samples of supplies, descriptions and/or photographs/ catalogues, and evidence of authenticity. It may also require certificates drawn up by official quality control institutes or agencies attesting to the conformity of the products with clearly identified specifications. These are optional requirements, left on the discretion of the contracting authority on whether they should be required or not. iii) Technical and professional requirement for service contracts 568 With regard to previous experiences, the contracting authority requires evidence of previous similar service contracts carried out in the last three years of business activity. In any case, the amount shall not be more than 40% of the value of contract to be procured. Evidence of successful execution of the service must be given by certificates or other documents issued by the recipient of the service stating dates, the amount and the type of service. To prove other technical and professional capacities, the contracting authority requires: - Professional licenses issued by competent authorities, needed for the delivery of the service; and/or 565 See article 58/2/a. 566 See article 58/4. 567 See article 27 of the Decision of Council of Ministers No. 914, dated 29.12.2014 “On approval of the public procurement rules”. 568 See article 28 of the Decision of Council of Ministers No. 914, dated 29.12.2014 “On approval of the public procurement rules”. Impact of European Union public procurement legislation on the Albanian public procurement system 2015 151 - A list of key personnel necessary to carry out the type of contract and/or its components may be requested by the contracting authority. The list of key personnel shall include their CVs, and professional licenses if applicable; and/or - a statement of the manpower needed for the execution of the contract; and/or - A statement of the tools, plant or technical equipment available to the service provider or contractor for carrying out the contract. As such, the Albanian procurement legislation has adapted the Directive requirement in the national context, taking mainly into consideration the complexity of the works contracts, compared to the supply and service contract (which is reflected at the requirement on past experience). In order to verify that works, goods and/or services meet the quality requirements 569 , the contracting authorities may request tenderers to submit certificates issued by independent bodies, recognized by national or international standardization systems. This provision shall be applicable even when technical requirements refer to the candidates’ or tenderers’ qualifications. These shall be proportionate and strictly related to the contract object and shall observe the principle of non-discrimination 570 . The same is generally provided by Directives too 571 , but it is still adapted into the Albanian context with two typical changes; first, Albanian procurement rules do not provide for the possibility of economic operators to submit equivalent quality assurance measures (mainly in cases where the economic operator concerned had no possibility to obtain such certificates within the relevant time limits for reasons that are not attributable to that economic operator, provided that the economic operator proves that the proposed quality assurance measures comply with the required quality assurance standards) as Directives do, and second, the Albanian rules refer to the international standardization systems (logically including the European ones, but is broader any way), while Directives refer to the European standards. Even in the case of technical and/or professional ability criteria, (as in the case of economic and financial standings, analyzed above), Directive(s) 572 provide for the possibility of an economic operator to rely on the resources of other entities to prove its economic and financial standing, while the Albanian legislation, on the other hand, does not explicitly provide for such possibilities. Still, in this context, the only possibility for 569 This criterion allows a contracting authority to assess whether economic operators have in place systems for carrying out tasks that directly affect product quality. This criterion is particularly important for supplies, for example. An example of a quality assurance standard is ISO 9001. 570 See article 30 of the Decision of Council of Ministers No. 914, dated 29.12.2014 “On approval of the public procurement rules”. 571 See article 49 of Directive 2004/18/EC and article 62 of Directive 2014/24/EU. The latest refers also to environmental management standards. 572 See article 48/3 and 4 of Directive 2004/18/EC and article 63 of Directive 2014/24/EU. Impact of European Union public procurement legislation on the Albanian public procurement system 2015 152 an economic operator to rely on the capacities of other entities is when they have a legal relation between them, according the legislation on trade companies 573 . 3.3.2.5 Possibility of requiring economic operators to supplement or clarify evidences When deemed as appropriate, the contracting authority may require tenderers to clarify their tenders in aiming at an objective examination, evaluation and comparison of tenders. Without prejudice to the negotiated procedures, no change in a matter of substance in the tender, including changes in price and changes aimed at making an unresponsive tender responsive, shall be sought, offered or permitted 574 . Directive 2004/18, on the other hand, does further, providing also the right of economic operators to even supplement 575 submitted certificates and documents 576 . Both cases do not indicate what is meant by “clarification” of evidence and “supplementary” evidences, or to what extent clarifications of the evidence submitted and/or supplementary evidence may be requested and accepted consequently. However, the ‘clarification situation’ is clearer than the ‘supplementary situation’. In general terms, to assist in the assessment of the evidence submitted with a view to establishing whether economic operators meet the set selection criteria, a contracting authority may, at its discretion, ask economic operators to clarify this evidence. Clarifications may be requested, for example, when the evidence submitted contains inconsistent or contradictory information, is not clear, or contains omissions 577 . Submitting supplementary evidences, on the other hand, is a much more delicate situation. Generally speaking, supplementary evidence means that additional information/evidence may be requested. Normally, this supplementary information/evidence required must relate to the evidence submitted and to the corresponding selection criteria that have been set 578 and must be a possibility given to all 573 See footnote no. 551 above. 574 See article 53/ of PPL. 575 The Directive does not indicate what is meant by “supplementary evidence”. 576 See article 51 of Directive 2004/18/EC. The new Directive 2014/24/EU, on the other hand does not provide for such possibility, at all. 577 See case C-599/10 SAG ELV Slovensko a.s., FELA Management AG and others v Úrad pre verejné obstarávanie (Judgment of the Court (Fourth Chamber) 29 March 2012). 578 According to S. Arrowsmith “what it is clear is that supplementary information must relate to the evidence and criteria in the lists…Thus, for example, in seeking information supplementary to certificates or declarations of completion of past contracts, entities can only seek information that concerns the completion of those contracts.” See S. Arrowsmith, “The Law of Public and Utilities Procurement”, Sweet and Maxwell, London, 2005, p. 744. See also case C-336/12 Ministeriet for Forskning, Innovation og Videregående Uddannelser v. Manova A/S, where the Court held that the principle of equal treatment does not preclude a contracting authority from asking a candidate, after the deadline for applying to take part in a tendering procedure, to provide documents describing that candidate’s situation – such as a copy of its published balance sheet – which can be objectively shown to pre-date that deadline, so long as it was not expressly laid down in the contract documents that, unless such documents were provided, the application would be rejected. That request must not unduly favor or disadvantage the candidate or candidates to which it is addressed. Impact of European Union public procurement legislation on the Albanian public procurement system 2015 153 tenderers, otherwise too much discretion is left to the contracting authority, which might lead to abusive practices 579 . Considering the possibility of misimplementation of the rules from contracting authorities, in such cases, PPL does not foresee the possibility of economic operators to supplement the already submitted documents at all. 3.3.3 Summary Description of the characteristics of goods, services or works that a contracting authority needs, is a key step in a procurement procedure. This description is made by the technical and service specifications. Apart from the technical specification, another important step of the contracting authority is to describe the criteria of the potential economic operators, which will be considered eligible to implement such a contract. These are actions carried out by the contracting authority, under the preparatory stage, but have a direct and important (inevitable) effect on the selection stage. As such, a lot of attention must be given to this stage of a procurement procedure. Generally speaking, the requirements of the PPL, on preparation of technical specifications and qualification criteria, are in the same line with those of the Directive (s). However, even in this case, it might not be said that the provisions at issue are fully approximated. The main feature, making the difference is ‘flexibility’. PPL tends to be stricter than the Directive(s), because it does reflect in its provisions, the general context (such as economic, social, political considerations). As analyzed in details, above, PPL tends to minimize the situations, which leave decisions on the contracting authority discretion 580 . This way of ruling the system gives more possibility to monitor and control the activities of contracting authorities in this regard, and aims at ensuring the good implementation of procedural rules. On the other hand, these “detailed ruled situations” might lead to situations that are not cost-effective (for example, a very good offer might 579 The provision in Article 56(3) of the New Public Procurement Directive 2014/24/EU now ensures that contracting authorities can request the economic operators to submit documents that are missing provided that such requests are made in full compliance with the principles of equal treatment and transparency. See also S. Treumer “Evolution of the EU Public Procurement Regime: The New Public Procurement Directive”, François Lichère, Roberto Caranta and Steen Treumer (eds.) “Modernizing Public Procurement. The New Directive”; 1. Edition, Djøf Publishing, Copenhagen 2014, pg 15. 580 Either the Directive(s) limits in a significant way a contracting authority’s discretion in this area. In fact, it lists the selection criteria on the basis of which the selection of economic operators may be carried out, it lays down the evidence or references that a contracting authority may require from economic operators to verify that the set selection criteria are satisfied, and it also lays down general rules concerning the process of selection. It seeks to ensure that the selection of economic operators does not provide opportunities for contracting authorities to conceal discrimination and that fair opportunities of participation are given to economic operators. The main objective of the Community Legislator is to ensure that intra-Community trade is not restricted and that the Treaty principles on freedom to provide services and freedom of establishment are respected. However, the Directive does give some discretion on contracting authorities (as for example to decide to apply or not the optional grounds for exclusion), or some possibilities to the economic operators (as for example to rely on others’ capacities). Impact of European Union public procurement legislation on the Albanian public procurement system Download 5.49 Kb. Do'stlaringiz bilan baham: 
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