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The preventive role of the judiciary in protecting the financial interest of the European Union.
A comparative analysis for improved performance
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6.
RULES ON BANS AND EXCLUSIONS FROM PUBLIC PROCUREMENT PROCEDURES
APPLICABLE TO DIFFERENT TYPES OF PARTICIPANTS TO PROCUREMENT
PROCEDURES
6.1.
Administrative exclusion of third parties, including subcontractors, based on the
public procurement legal framework
According to Directive 2014/24/EU, there are at least four types of economic operators participating to
public procurement procedures:
1.
The bidders,
2.
The associated bidders,
3.
The subcontractors,
4.
A third party supporting the bidder in meeting the selection criteria.
Article 63 of the Directive permits an economic operator to rely on the economic and financial standing
as well as the technical and professional ability of another entity, a supporting third party in order to
satisfy selection stage requirements. This reliance on the capacities of other entities is allowed, regardless
of the legal nature of the arrangements between the economic operator wishing to participate in a
procurement process and the third parties on which it relies.
On the other hand, Article 71 allows for the subcontracting of the contract execution to a third party,
named subcontractor.
Article 63(2) of the Directive includes a specific limitation on using the capacity of a third party entity to
meet the selection requirements and on the help of subcontractors. In the case of “works contracts,
service contracts and siting or installation operations in the context of a supply contract, contracting
authorities may require that certain critical tasks be performed directly by the bidder itself or, where the
tender is submitted by a group of economic operators [...] by a participant in that group”. In this case, the
contractor must perform those tasks directly. It is not allowed to subcontract them or to otherwise
entrust the tasks to third parties.
The supporting third party and the subcontractor can be the same operator / legal person, or different
persons.
The Directive is clear regarding the exclusion criteria for the bidders and associated bidders, i.e. the
economic operators presenting an offer on their own behalf, as these criteria are provided by Article 57.
The third party supporting the bidders in meeting the economic, financial, technical and professional
criteria is also subject of the exclusion criteria provided by Article 57.
On the other hand, there is no specific mention on exclusion criteria regarding subcontractors. According
to Article 71(2) of the Directive, the contracting authority is permitted, but not obliged to ask an economic
operator to indicate in its tender “any share of the contract it may intend to subcontract to third parties
and any proposed subcontractors”. National provisions may oblige contracting authorities to request this
information from economic operators. Therefore, the regulations regarding the exclusion criteria
applicable to subcontracts can vary form a country to another.
In the
Greek
case, under article 131 paragraph 5 of Law 4412/2016, contracting authorities may verify
whether there are grounds for exclusion for subcontractors according to articles 73 and 74. If the