One of the most important changes in the Public Procurement Law is introduction of the European Single Procurement Document, which should make it much simpler for bidders to apply for public contracts.
The new Classic Procurement Directive (2014/24/EU) states in the preamble (point 84) that for many economic operators, “a major obstacle to their participation in public procurement consists in administrative burdens deriving from the need to produce a substantial number of certificates or other documents related to exclusion and selection criteria”—conditions for participating in procedures for award of public contracts. Limiting such requirements could deformalise the procedure and encourage a broader groups of contractors to participate in public procurement.
For this reason, the directive introduced the European Single Procurement Document, or “ESPD” for short.
ESPD in EU law
This solution is aimed primarily at simplifying the public procurement system. The ESPD is nothing more than an extensive statement by the bidders themselves on fulfilment of the conditions for participation in a procurement procedure and the absence of grounds for exclusion from the procedure. When the ESPD is used, only the bidder that has submitted the most advantageous offer will be required to present all of the actual certifications and other source documents. This solution was proposed by Elżbieta Bieńkowska, European Commissioner for Internal Market, Industry, Entrepreneurship and SMEs, and was intended to eliminate the administrative burdens placed on SMEs and bidders applying for contracts in other member states.
Based on Commission Implementing Regulation (EU) 2016/7 of 5 January 2016 establishing the standard form for the European Single Procurement Document, the ESPD runs to about 20 pages. The form will ultimately be completed only online. At present, in the countries where the ESPD already functions, every contractor fills out the statement by hand, but can expedite the process by submitting a scan of the document. Every member state is required to create an IT system enabling the forms to be completed, submitted and exchanged between the parties to procurement procedures. These solutions should be implemented by the end of 2018 (in Poland as well).
The form should make life easier for contractors taking part in cross-border procurement procedures, because it will be used in all of the EU’s official languages, in theory replacing national documents which often differ in form. Additionally, Art. 59 of Directive 2014/24/EU provides for creation of a national database providing contractors access free-of-charge to all necessary documents and certificates.
Unfortunately, the EU documents do not offer a comprehensive solution. They do not include information about covering the costs of operating the database, or in the case of cross-border procurements, the costs of translation of documents. However, it is clear that if the contracting authority can use such a database, the contractors will not be required to submit original documentation.
It should also be remembered that every member state is required to implement the e-Certis system. The e-Certis platform will serve as a repository of certifications, to be used primarily by contracting authorities. Under Art. 61 of the directive, the European Commission will make the e-Certis system available and manage it, while the corresponding national teams will oversee updating of the information included in the system.
ESPD under Polish law
Solutions concerning ESPD have been included in the proposal to amend the Public Procurement Law in Poland. Under the proposed new Art. 25a of the act, upon submission of an application for participation in a procedure, or an offer, in procedures where the value of the contract is above the threshold requiring publication of a contract notice in the EU Official Journal, the contracting authority will accept an ESPD as preliminary evidence in place of certificates and other documents issued by public authorities or third parties showing that the contractor meets the conditions for participation and is not subject to exclusion (Art. 25a(1)). The Polish law will allow the contractor to use the information contained in the ESPD in other procurements so long as the contractor confirms that the information is up-to-date (Art. 25a(6)).
The amendment also indicates the rules for filing the ESPD by contractors appearing in a consortium or relying on the capacity of third parties (Art. 25a(3)–(4)). A contractor will be required to submit an ESPD for other entities insofar as it relies on their capacity. If bidders seek a contract jointly, each of them will be required to file an ESPD. The ESPDs will have to confirm fulfilment of the conditions for participation in the procedure, in terms of each of the contractors demonstrating fulfilment of the conditions for participation or the selection criteria.
In accordance with the fundamental purpose of introducing the ESPD, contracting authorities will require documents confirming the conditions for participation only prior to awarding the contract to the bidder whose offer was selected as the most advantageous. Meanwhile, the contracting authority will be permitted to request submission at any stage of the procedure of any or all of the documents confirming fulfilment of the conditions for participation or the selection criteria, if necessary to ensure the proper conduct of the procedure. If the information or documents submitted by the contractors to confirm fulfilment of the conditions for participation or selection criteria, or lack of grounds for exclusion, are incomplete, inaccurate or doubtful, the contracting authority will be entitled to demand submission, supplementation, correction or clarification of the relevant information or documents by a specified time (Art. 26(3)).
The EU rules for ESPD require thoughtful and comprehensive implementation solutions in national law. The very idea of ESPD is clearly worthwhile, but it should be borne in mind that solutions that seem simple at first glance do not always work out better. Here, although the proposed amendment implements the EU directive, it does not resolve doubts in interpretation related to use of the ESPD. The main issues include:
- The actions to be taken by the contracting authority if the contractor whose offer was selected as the most advantageous fails to submit the required documents. It is unclear whether in that situation the contracting authority should then pick the next-best contractor, re-evaluate the offers, or invalidate the procedure.
- The date of certificates. Since the purpose of the ESPD is to simplify the procedure for seeking contracts, and certificates are to be submitted only by the contractor whose offer is found to be the most advantageous, it would be logical for certificates to be obtained after the contracting authority evaluates the offers. But the rule requiring demonstration of fulfilment of the conditions for participation in the procedure as of the date of filing of the offer or application for admission to the procedure remains unchanged. In practice, this could undermine the whole purpose of the ESPD.
- Incomplete regulations for functioning of databases—at least in terms of operating costs (for example, who will cover the cost of obtaining certificates from foreign databases in the case of contractors from other countries seeking the award of contracts in Poland).
Considering what a huge influence the public procurement sector has on the Polish economy, solutions like ESPD, designed to harmonise the laws across the member states while reflecting their different particulars and the realities under which they are applied, deserve a great deal of attention. Clearly, a lot will depend on the practice of applying the new Art. 25b of the Public Procurement Law, but it is already apparent that further clarification of the regulations governing the European Single Procurement Document may be required.
Natalia Rutkowska, Maria Hejda, Infrastructure, Transport, and Public Procurement & Public-Private Partnership practices, Wardyński & Partners