The public procurement procedure with joint resources – requirements. The risk of transmission of the offer. Extended electronic signature – sanction for lack of capacity as representative

DREPT ADMINISTRATIV

Abstract

Art. 51 of GD 395/2016 reflects that the requirements for capacity are deemed met in case of the business operators joined for the award procedure and when proof is made that only one of the members of the joint venture has said authorization if said member performs part of the contract for which it is requested (para. 1). At the same time, in case of subcontracts, the requirements of capacity are deemed met also if the designated subcontractor has the permit requested in the award documentation but only when it is bound to perform the part of contract for which said permit is required (para. 2). Pursuant to Art. 125 of GD 395/2016 the risks of transferring the offer fall upon the business operator who will incur, irrespective of finding a fault the risk of being unable to extract the information in the offer by the deadline set by the contracting authority to submit it. 
Art. 137 para. (2) letter j of GD 395/2016 declares the offer unacceptable if said offer and the accompanying documents are not signed with an extended electronic signature, based on a qualified certificate, issued by an accredited provider of certification services. Consequently the GD 395/2016 provides an extended electronic signature for the documents loaded in SEAP by the economic operators as a condition for validity being the 
modality to certify the offeror’s will expressed directly or by agent to undertake in the procurement procedure