Qualifications Systems & Specifications
Awarding authorities may use qualification systems to select businesses to invite to tender or negotiate for a contract under the Utilities Directive. The systems must be based on objective criteria and quantification. Businesses must be able to participate at any time. The rules on qualification must be available on request. Updating and changes in the criteria must be communicated.
Qualification systems may be made with reference to technical specifications. They must be published in the contract documents. They must be by reference to EU standards or where they do not exist, national standards or equivalent. Environmental characteristics may be provided for. The criteria may be performance or functional or a mixture of performance and functional and technical standards.
The awarding authority may not reject a tender on the basis that it does not comply with specifications if the tenderer proves that the solutions satisfy the requirements in an equivalent manner to that provided for by the technical specifications. It may not reject tenders on the basis of national standards transposing an EU standard, common technical or international specification if they address the performance requirements set out in the tender, provided that the tenderer proves that they meet the performance and functional requirements.
Unless objectively justified, specifications may not refer to a particular make, source, trademark, patent, origin unless objectively justified and strictly necessary.
Technical specifications regularly referred to in supply contracts by the authority or those covered by periodic indicative notices, must be made available on request to interested businesses. Where they are based on documents available, reference to those documents is sufficient.
Exclusions of Tenderers
Awarding authorities may exclude participants in a public contract if the subject of a conviction for certain offences including occupation in a criminal organisation, corruption, fraud or money laundering. Tenderers may be excluded on the basis of insolvency, bankruptcy, winding up, professional misconduct findings, breach of social security contributions requirements or failure to pay taxes or is guilty of serious misrepresentation in relation to information in the above matters.
Sufficient evidence of the situation of tenderers may be provided by judicial records or equivalent documents by judicial or administrative authorities or by revenue authorities. Where none such are issued by the State, confirmation by declaration or oath before a competent authority suffices. The authority may vouch the information with the relevant authorities.
Where the awarding authority sets criteria in relation to qualifications on the basis of economic and financial capacity, tenderers may rely on the capacity of other entities which give appropriate undertakings. Groups may rely on the capacity of one or more group members.
Where the criteria require technical or professional ability, tenderers may rely on the capacity of other entities proving that they have the required resources, such as group members.
When establishing a qualification system, contracting authorities must comply with obligations in relation in relation to notices on the system. There must be a notice setting out the purpose of the system and how to have access to its rules and operation. Information must include
- details of the awarding authority;
- particulars of whether the contract is reserved for sheltered employment;
- statement of the purpose of the system including a description of goods, works, services;
- statement of the conditions to be fulfilled in relation to quantification under the system and the methods by which they will be verified;
- period of validity;
- notice that there is a request for a competition;
- address for obtaining information regarding the qualification system;
- details of any appellate or appeal body or a mediation service together with details of time limits for lodging appeals;
- indication of award criteria, weighting, and relative importance of the relevant information.
Where the system is for more than three years, the notice must be published annually.
Information to be GIven
The contracting authority has obligations regarding information to be given to prospective tenderers who apply for qualification. Decisions must be given within a period of six months. If it takes longer than four months, the applicant must be informed and reasons justifying the longer period must be given together with the ultimate decision date.
Applicants who are disqualified must be informed of the decision and the reason for the decision within 15 days decision. The refusal must have an objective basis such as capacity, technical ability, fraud, and corruption etc.
Where a system of qualifications is operated, it may be terminated only for reasons based on qualifications. A prior notice must be given together with reasons for the termination.
Contracting authorities must recognise as equivalent, certificates from bodies established in other EU states. In judging qualification, technical, administrative and financial conditions may not be imposed which are discriminatory or which duplicates objective evidence of qualification already available. Relevant standard assurance bodies in Europe must be accepted on an equal basis.
Criteria for qualitative selection in open negotiation procedures must be undertaken in accordance with objective rules and criteria which are publicised and available to interested parties. In restricted negotiation procedures, the criteria are based on the need to reduce the number of candidates to a level justified to make the procurement procedure economically justifiable in terms of its objectives.