Public procurement. Conditions to be met in order for an economic operator to be able to specify the capabilities of other entities in order to demonstrate the fulfillment of a qualification requirement.

DREPTUL CONTENCIOSULUI ADMINISTRATIV ŞI FISCAL

Abstract

Both the text of national law and the rule in Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement lay down the rule that in the event that the resources of third party supporters are used to demonstrate relevant professional experience, third parties must effectively perform the activities for which they provide support.

The supporting third party relied on to meet the criteria for 'similar experience' must actually perform the activities for which it has provided support to the tenderer.

'Similar experience' refers precisely to the technical and professional capacity of the tenderer over time, and the fact that a tenderer appeals to a supporting third party to demonstrate compliance with the 'similar experience' requirement denotes that the tenderer does not have the required experience and, implicitly, the resources necessary to carry out effectively the works that are the object of such procurement contract.

Failure by a tenderer to meet a qualification requirement, as in this case - the quality requirement, cannot be covered by the subsequent submission of documents that were not submitted at the time of submission of the tender.

The prices established in the submitted bid must be justified by conclusive evidence submitted in support by the tenderer, having the character of essential elements of the financial proposal whose veracity must be analyzed by the valuation committee, pursuant to the provisions of Article 127 paragraph (1) letter h) of GD no. 395/2016.

When setting the price, it is necessary to take into account the guarantee period granted to the materials, a guarantee which represents a commitment assumed by the tenderer in order to assure the contracting authority that within this period, this company has the obligation to remedy at its expense the deficiencies appearing in relation to the works performed.

The requirements imposed by the contracting authority in the procurement data sheet, in the specifications book and in the letter containing the contracting authority's reply to the requests for clarification are binding, since these requirements have not been challenged by any interested economic operator. As long as the award documentation (including the data sheet and the specifications book) has not been challenged, it becomes mandatory for both the authority and the tenderers who must comply with it exactly.