Policy OLAF BT

The preventive role of the judiciary in protecting the financial interest of the European Union.

A comparative analysis for improved performance

economic operator declares a subcontractor in accordance with article 58 of Law 4412/2016 and the

share of the contract it intends to sub-contract does not exceed the 30% of the total amount of contract,

the contracting authority has the discretion to verify whether there are any grounds for exclusion. If the

share of the contract it intends to sub-contract exceeds 30%, then the contracting authority has the

obligation to verify whether any exclusion grounds are present.

In the case a subcontractor is in one of

the exclusion criteria, the contracting authority i) may require that the economic operator replaces a

subcontractor in respect of which the verification has shown that there are compulsory grounds for

exclusion, ii) may require that the economic operator replaces a subcontractor in respect of which the

verification has shown that there are non-compulsory grounds for exclusion.

Italy

, art. 80, c. 1 of the Public Procurement Code provides that grounds for exclusion (criminal

convictions) should also apply to the subcontractors. Accordingly, art. 105, c. 4, Legislative Decree n.

50/2016 states that the subcontracting is allowed where the bidder proves the absence of causes of

exclusion on the subcontractors according to art. 80. To prove that they meet the criteria, the bidder

must file the subcontracting contract 20 days before the date of commencement of the contract

execution, along with the certificate attesting that qualification requirements are met by the

subcontractor and the Statement of the subcontractor attesting the absence of exclusion grounds for the

subcontractors. According to interviewed experts, it is still unclear whether the law provides for the

possible exclusion of subcontractors. It seems that there is no exclusion for companies sanctioned for

attempted mafia infiltration and for tax and social security breaches. However, this is an interpretation

of the new law (article 80) and a clarification will follow the first decisions of the Supreme Court on the

topic.

In the

case of Lithuania

, Art. 49 para. 4 of the law on public procurement provides that the contracting

authority is under obligation to apply the same grounds of exclusion for subcontractors only if the bidder

relies on the subcontractor(s) to meet the qualification requirements. If a subcontractor is found to satisfy

any of the exclusion grounds as provided for in Art. 46 the purchasing authority must request that the

bidder substitute this subcontractor. On the other hand, art. 88 para. 5 of the same law stipulates that

the contracting authority may apply the same grounds of exclusion for subcontractors if the bidder does

not rely on the subcontractor(s) to meet the qualification requirements. If the purchasing authority

decides to apply the grounds of exclusion, it must apply all the grounds of exclusion as provided for in Art

46.

In the

Romanian case

, the law states clearly that the subcontractors are subject to the same exclusion

criteria as the bidders, the associated bidders and the supporting third party for the selection criteria. If

a subcontractor is in one of the exclusion cases, the contacting authority will request only once the

replacement of the subcontractor by the bidder.

6.2.

Bans for subcontractors as criminal sanctions or security measures

In the two national cases assessed where bans form public procurements are a separate criminal

sanction: in Italy and in Romania, the ban as a criminal sanction prevents the legal person from

Hellenic Single Public Procurement Authority,

Guideline 20 - Grounds for Exclusion from Participation in Public

Procurement Procedures

, Athens, 14.06.2017, p. 32

Art. 170 of Law no. 98/2016 on Public Procurement