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.
The Commission proposes to introduce a simplified provision on exclusion on the grounds of conditions relating to the economic operator. Contracting authorities shall exclude economic operators that do not have the required qualifications and in certain cases of conflicts of interest and where competition is distorted from the prior involvement of the economic operator in the preparation of a procurement procedure.
A majority of the Commission proposes to continue the obligation to exclude economic operators that have been convicted for certain criminal offences. A minority of the Commission, however, believes that the contracting authority should only have a right, not an obligation, to exclude economic operators under such circumstances.
Another minority of the Commission proposes to continue the requirement to submit tax certificates and HES-declarations (Health, Environment and Safety). This minority also proposes to continue a mandatory exclusion on grounds where such certificates and declarations are not submitted.
The Commission proposes to introduce a new general exclusion ground that gives the contracting authority a right to exclude an economic operator where there is doubt as to the integrity of the operator or its ability to carry out the contract. This would include the grounds of exclusion specifically mentioned in paragraph 4 of Article 57 of the new public procurement directive. However, it could also include other situations, e.g. where the economic operator finds itself in other types of financial difficulties than bankruptcy, insolvency etc.
The Commission also proposes to introduce a simplified provision on exclusion on the grounds of conditions relating to the tender. The contracting authority shall exclude tenders that are not legally binding, that deviate from fundamental requirements in the procurement documents or which do not comply with the minimum requirements for variants. The contracting authority can exclude tenders that deviates from non-fundamental requirements in the procurement documents or contains inaccuracies.
Furthermore, the Commission proposes to introduce a new general exclusion ground that gives the contracting authority a right to exclude tenders that are otherwise unacceptable. This would for instance cover tenders which are abnormally low, tenders whose price exceeds the contracting authority’s budget and tenders which do not comply with obligations in the fields of environmental, social and labour law.
The Commission finally addresses certain questions relating to the procedure of exclusion, the standard of proof, the notion of «conviction by final judgment», self cleaning, the period of exclusion , identification and the exclusion of subcontractors. The Commission is, however, of the view that the regulation of these questions should be the same in Part II and III and thus ,it leaves it to the Ministry of Trade, Industry and Fisheries to formulate such provisions.
With Directive 2014/24/EU the distinction between A and B services is abolished. For certain health, social and other specific services, however, the directive introduces a new particular procurement regime. The Commission proposes, as a general rule, that the same rules apply to contracts on health and social services etc. as to contracts below the EU-thresholds. However, the Commission proposes to introduce a specific provision that allows for the award of health and social contracts on the basis of the choice of the individual user. It also proposes that the general rule on maximum duration for framework agreements does not apply to these specific contracts.
A majority of the Commission proposes that the same national threshold applies to such services. A minority of the Commission proposes a new national threshold of 3 000 000 kroner for such services, so that only the general principles apply below this threshold.
The Commission presents an alternative proposal for a light regime, i.e. a set of minimum requirements that should apply in order to ensure that the basic EU principles and the objectives of the regulations are upheld.
A majority of the Commission is of the view that it would be sufficient to state that the basic principles apply. However, in order to ensure competition, there should also be an obligation for contracting authorities to publish contract notices.
A minority of the Commission believes that the minimum requirements should include a simplified obligation to publish contract notices for all contracts above 100 000 kroner, and to keep a procurement protocol. This is due to the fact that there is a greater need for transparency when the contracting authority is free to arrange the procurement procedure as he best sees fit.
Another minority of the Commission is of the opinion that a light regime should also contain rules on other policy considerations.