Criteria for qualitative selection of economic operators
The Commission proposes to maintain the current provision that allows, but not requires, contracting authorities to set criteria for qualitative selection of economic operators. It does not see a need to clarify in the provision that such criteria must be linked to the subject-matter of the contract and that they must be proportionate and non-discriminatory, as this is already implied and follows from the general principles.
The Commission does not propose to introduce a cap on the required minimum yearly turnover in Part II of the Regulation.
Documentation
The Commission proposes to continue an obligation for contracting authorities, when setting certain criteria for the qualitative selection of economic operators, to also set the required means of documentation.
Furthermore, the Commission proposes to introduce the new self-declaration regime of Directive 2014/24/EU also in Part II of the Regulation. This allows for the economic operator to provide a self-declaration as preliminary evidence in replacement of certificates issued by public authorities or third parties confirming that it fulfils the qualification criteria and is not in any of the situations that could lead to exclusion. In addition, the Commission also proposes that contracting authorities can allow for self-declarations as preliminary evidence in replacement of other types of documentation.
The Commission proposes to continue the content of the current provisions on contract award criteria. Pursuant to the new public procurement directive, however, the most economically advantageous tender is to be used as an overriding concept for the award of contracts. The Commission proposes that this concept is also used for contracts below the EU-thresholds.
The Commission proposes that the contracting authority should not have to choose between different award criteria models (lowest price, lowest cost or the best price-quality ratio). Thus, the new concept will also cover competitions where for instance price is used as the sole criterion. The aim is to give the contracting authority more flexibility below EU-thresholds than above.
Furthermore, the Commission proposes that contracting authorities should be under no obligation to specify the weighting which it gives to each of the criteria chosen to determine the most economically advantageous tender.
As regards contracts on health and social services, the Commission proposes that the choice of the individual users can be used as an award criterion.
The Commission proposes to continue the provision in current Article 9-1 on publication of contract notices. In addition, the Commission proposes to introduce a general possibility for contracting authorities to make their intentions to award a contract known by means of a prior information notice in accordance with the regime of Article 75 of the new public procurement directive. Thus, contracting authorities can, for all contracts, choose between a contract notice and a prior information notice.
The Commission proposes to repeal the provision in Article 9-2, which gives the contracting authority a right to publish a contract award notice. The contracting authority is able to do so in any event. The minority of the Commission proposes, instead, to introduce a new obligation to publish a contract award notice also for contracts below the EU-thresholds.
Pursuant to Article 75 of the new public procurement directive, however, contracting authorities are required to publish a contract award notice for contracts on health, social and other specific services above the EU-threshold. Thus, the Commission proposes to introduce such an obligation.
The Commission proposes to continue the rule that contracting authorities must set time limits that gives the economic operators adequate time to collect the necessary documentation and make the necessary assessments and calculations. Thus, the Commission does not propose to introduce any fixed time limits for the receipt of request to participate or tenders. On the contrary, it should be left to the contracting authorities to assess, in accordance with the principle of proportionality, what constitutes an adequate time limit.
The Commission proposes to continue the provisions on the tender validity period. However, economic operators should have a possibility to be released from their tenders when they are not invited to take part in the negotiations.
Formal requirements
It is the view of the Commission that the provisions on formal requirements for tenders are unnecessarily detailed. Thus, it proposes to repeal the requirements that tenders have to be sealed and marked. The Commission further proposes to replace the requirement that tenders have to be signed with a requirement that tenders have to be legally binding.
The Commission, however, proposes to continue the requirement that tenders shall be submitted in writing.
Deviations and inaccuracies
The Commission proposes to repeal the provision in Article 11-3 which allows economic operators to submit tenders with deviations or reservations from the minimum requirements of the procurement documents. It is the view of the Commission that such deviations or reservations are substantial and must led to exclusion.
The Commission proposes to codify the contra proferentem doctrine, i.e. that the tenderer bears the risk if a tender is ambiguous or unclear.
Modification and withdrawal of tenders
The Commission proposes to repeal the provisions on modification and withdrawal of tenders, as this already follows from basic principles of contract law. In this regard, the Commission points out that the tenderer is bound by the all tenders submitted in a negotiated procedure, both the originally submitted tender and any subsequently revised tenders.
Variants
The Commission is of the opinion that the same rules on variants should apply to Part II and Part III of the Regulation, and thus leaves it to the Ministry of Trade, Industry and Fisheries to formulate the provisions on the basis of the provision on variants in the new public procurement directive.
The handling of tenders
The Commission proposes to repeal the requirements for contracting authorities to register tenders as they are received, and to confirm the receipt. Furthermore, it proposes to repeal the provisions on the opening of tenders, as these are seen as unnecessarily formalized.
In a number of circumstances, contracting authorities can or shall exclude economic operators or tenders. This can be due to conditions relating to the economic operator or to the tender itself. The current rules are complicated and give rise to a number of conflicts, both before KOFA and the courts. Thus, there is a great potential for simplification of the provisions on exclusion.
The Commission proposes to introduce a new provision on exclusion on the grounds of formalities, e.g. when tenders are received late or does not comply with the procedural requirements.