| | 32004L0018: c3-48.1-2.a-eMeans and criteria    
| 32004L0018 - Classic (3rd generation) | Article 48.1-2.a-e | Technical and/or professional ability
1. The technical and/or professional abilities of the economic operators shall be assessed and examined in accordance with paragraphs 2 and 3.
2. Evidence of the economic operators' technical abilities may be furnished by one or more of the following means according to the nature, quantity or importance, and use of the works, supplies or services:
(a) (i) a list of the works carried out over the past five years, accompanied by certificates of satisfactory execution for the most important works. These certificates shall indicate the value, date and site of the works and shall specify whether they were carried out according to the rules of the trade and properly completed. Where appropriate, the competent authority shall submit these certificates to the contracting authority direct;
(ii) a list of the principal deliveries effected or the main services provided in the past three years, with the sums, dates and recipients, whether public or private, involved. Evidence of delivery and services provided shall be given:
- where the recipient was a contracting authority, in the form of certificates issued or countersigned by the competent authority,
- where the recipient was a private purchaser, by the purchaser's certification or, failing this, simply by a declaration by the economic operator;
(b) an indication of the technicians or technical bodies involved, whether or not belonging directly to the economic operator's undertaking, especially those responsible for quality control and, in the case of public works contracts, those upon whom the contractor can call in order to carry out the work;
(c) a description of the technical facilities and measures used by the supplier or service provider for ensuring quality and the undertaking's study and research facilities;
(d) where the products or services to be supplied are complex or, exceptionally, are required for a special purpose, a check carried out by the contracting authorities or on their behalf by a competent official body of the country in which the supplier or service provider is established, subject to that body's agreement, on the production capacities of the supplier or the technical capacity of the service provider and, if necessary, on the means of study and research which are available to it and the quality control measures it will operate;
(e) the educational and professional qualifications of the service provider or contractor and/or those of the undertaking's managerial staff and, in particular, those of the person or persons responsible for providing the services or managing the work; | | 31993L0037 - Works (2nd generation) | Article 27.1.a-b | Article 27
1. Evidence of the contractor's technical capability may be furnished by:
(a) the contractor's educational and professional qualifications and/or those of the firm's managerial staff and, in particular, those of the person or persons responsible for carrying out the works;
(b) a list of the works carried out over the past five years, accompanied by certificates of satisfactory execution for the most important works. These certificates shall indicate the value, date and site of the works and shall specify whether they were carried out according to the rules of the trade and properly completed. Where necessary, the competent authority shall submit these certificates to the contracting authority direct; | | 31993L0036 - Goods (2nd generation) | Article 23.1.a-b | Article 23
1. Evidence of the supplier's technical capacity may be furnished by one or more of the following means according to the nature, quantity and purpose of the products to be supplied:
(a) a list of the principal deliveries effected in the past three years, with the sums, dates and recipients, public or private, involved:
- where effected to public authorities, evidence to be in the form of certificates issued or countersigned by the competent authority;
- where effected to private purchasers, delivery to be certified by the purchaser or, failing this, simply declared by the supplier to have been effected;
(b) a description of the supplier's technical facilities, its measures for ensuring quality and its study and research facilities; | | 31992L0050 - Services (2nd generation) | Article 32.2.a-b | 2. Evidence of the service provider's technical capability may be furnished by one or more of the following means according to the nature, quantity and purpose of the services to be provided:
(a) the service provider's educational and professional qualifications and/or those of the firm's managerial staff and, in particular, those of the person or persons responsible for providing the services;
(b) a list of the principal services provided in the past three years, with the sums, dates and recipients, public or private, of the services provided;
- where provided to contracting authorities, evidence to be in the form of certificates issued or countersigned by the competent authority,
- where provided to private purchasers, delivery to be certified by the purchaser or, failing this, simply declared by the service provider to have been effected; | | 31971L0305 - Works (1st generation) | Article A-26.1.a-b | Article 26
Proof of the contractor's technical knowledge or ability may be furnished by:
(a) the contractor's educational and professional qualifications and / or those of the firm's managerial staff, and, in particular, those of the person or persons responsible for carrying out the works
(b) a list of the works carried out over the past five years, accompanied by certificates of satisfactory execution for the most important works. These certificates shall indicate the value, date and site of the works and shall specify whether they were carried out according to the rules of the trade and properly completed. Where necessary, the competent authority shall submit these certificates to the authority awarding contracts direct; | | 31977L0062 - Goods (1st generation) | Article 23.1.a-b | Article 23
1. Evidence of the supplier's technical capacity may be furnished by one or more of the following means according to the nature, quantity and purpose of the goods to be supplied:
(a) a list of the principal deliveries effected in the past three years, with the sums, dates and recipients, public or private, involved:
- where to public authorities awarding contracts, evidence to be in the form of certificates issued or countersigned by the competent authority;
- where to private purchasers, delivery to be certified by the purchaser or, failing this, simply declared by the supplier to have been effected;
(b) a description of the undertaking's technical facilities, its measures for ensuring quality and its study and research facilities; |
| Case | Pte | Ref | Text | C-126/03
Germany | 22 | S2-20.1
S2-32.2.c
S2.32.2.h | 22. The German Government also argues that it would have been impossible in practice to award the contract at issue in accordance with Titles III to VI of Directive 92/50, inasmuch as, in order to demonstrate its technical capability for the purposes of Article 32(2)(c) and (h) of that directive when the invitation to tender was issued by AWG DonauWald, the City of Munich needed to communicate the name of its subcontractor at the time its offer was lodged. In that regard it is true that a service provider which, with a view to being admitted to participate in a tendering procedure, intends to rely on the resources of entities or undertakings with which it is directly or indirectly linked must establish that it actually has available to it the resources of those entities or undertakings which are necessary for the performance of the contract but which it does not itself own (see, to that effect, Case C-176/98 Holst Italia [1999] ECR I-8607, paragraph 29; Case C-399/98 Ordine degli Architetti and Others [2001] ECR I-5409, paragraph 92; and Case C-314/01 Siemens and ARGE Telekom & Partner [2004] ECR I0000, paragraph 44). However, in the present case, it would in any event have been possible for the City of Munich to undertake an accelerated restricted procedure under Article 20 of Directive 92/50 between the issuing of the invitation to tender and the lodging of its offer. | C-314/01
Siemens | 41-47 | S2-25.1
S2-32.2.c
S2-32.2.h | 41. This question is based on the premiss that a provision in an invitation to tender which prohibits recourse to subcontracting for material parts of the contract is contrary to Directive 92/50, as interpreted by the Court in Holst Italia.
42. It must be borne in mind in this regard that Directive 92/50, which is designed to eliminate obstacles to the freedom to provide services in the award of public service contracts, expressly envisages, in Article 25, the possibility for a tenderer to subcontract a part of the contract to third parties, as that provision states that the contracting authority may ask that tenderer to indicate in its tender any share of the contract which it may intend to subcontract. Furthermore, with regard to the qualitative selection criteria, Article 32(2)(c) and (h) of Directive 92/50 makes express provision for the possibility of providing evidence of the technical capacity of the service provider by means of an indication of the technicians or technical bodies involved, whether or not belonging directly to the undertaking of that service provider, and which the latter will have available to it, or by indicating the proportion of the contract which the service provider may intend to subcontract.
43. As the Court ruled in paragraphs 26 and 27 of Holst Italia , it follows from the object and wording of those provisions that a party cannot be eliminated from a procedure for the award of a public service contract solely on the ground that that party proposes, in order to carry out the contract, to use resources which are not its own but belong to one or more other entities. This means that it is permissible for a service provider which does not itself fulfil the minimum conditions required for participation in the procedure for the award of a public service contract to rely, vis-à-vis the contracting authority, on the standing of third parties upon whose resources it proposes to draw if it is awarded the contract.
44. However, according to the Court, the onus rests on a service provider which relies on the resources of entities or undertakings with which it is directly or indirectly linked, with a view to being admitted to participate in a tendering procedure, to establish that it actually has available to it the resources of those entities or undertakings which it does not itself own and which are necessary for the performance of the contract (Holst Italia , paragraph 29).
45. As the Commission of the European Communities has correctly pointed out, Directive 92/50 does not preclude a prohibition or a restriction on the use of subcontracting for the performance of essential parts of the contract precisely in the case where the contracting authority has not been in a position to verify the technical and economic capacities of the subcontractors when examining the tenders and selecting the lowest tenderer.
46. It follows that the premiss on which the second question is based would prove to be accurate only if it were to be established that Point 1.8 of the invitation to tender prohibits, during the phase of the examination of the tenders and the selection of the successful tenderer, any recourse by the latter to subcontracting for the provision of essential services under the contract. A tenderer claiming to have at its disposal the technical and economic capacities of third parties on which it intends to rely if the contract is awarded to it may be excluded only if it fails to demonstrate that those capacities are in fact available to it.
47. Point 1.8 of the invitation to tender does not appear to relate to the examination and selection phase of the procedure for award of the contract, but rather to the phase of performance of that contract and is designed precisely to avoid a situation in which the performance of essential parts of the contract is entrusted to bodies whose technical and economic capacities the contracting authority was unable to verify at the time when it selected the successful tenderer. It is for the Bundesvergabeamt to establish whether that is indeed the case. | C-225/98
France | 80-83 | W1-26.1.a-b
W1-26.1.c-e
ECT-49 [ex 59] | 87 In this respect, the Court finds, first, that the requirement of proof that the designer is registered with the Ordre des Architectes can only give advantage to the provision of services by French architects, which constitutes discrimination against Community architects and, accordingly, a restriction on their freedom to provide services.
88 Second, according to the case-law, Directive 71/305 precludes a Member State from requiring a tenderer established in another Member State to furnish proof by any means other than those prescribed in Articles 23 to 26 of that directive, that he satisfies the criteria laid down in those provisions and relating to his qualifications (see, to that effect, Transporoute, paragraph 15).
89 In any event, the French Government itself recognises that those criticisms by the Commission are well founded but submits that the infringements committed are essentially the result of the inexperience of the contracting authorities in question in applying the Community rules on the award of public contracts.
90 Consequently, it must be concluded that the Commission's complaint relating to the minimum standards for participation is well founded and that the French Republic has failed in its obligations under Articles 59 of the Treaty and 26 of Directive 71/305. | 31/87
Beentjes | 38 + 40-44 | W1-20
W1-26.1.a-b
W1-26.1.c-e
W1-26.2
W1-29.1
W1-29.2
W1-29.3
W1-29.4
W1-29.5.1-2
W1-29.5.3
ECT-249 [ex 189] | 38 The third question seeks in substance to establish whether Articles 20, 26 and 29 of Directive 71/305 may be relied upon by individuals before the national courts.
40 Furthermore, the Court has consistently held (see most recently the judgment of 26 February 1986 in Case 152/84 Marshall v Southampton and South-West Hampshire Health Authority (( 1986 )) ECR 723 ) that where the provisions of a directive appear, as far as their subject-matter is concerned, to be unconditional and sufficiently precise, those provisions may be relied on by individuals against the State where that State fails to implement the directive in national law within the prescribed period or where it fails to implement the directive correctly.
41 It is therefore necessary to consider whether the provisions of Directive 71/305 in question are, as far as their subject-matter is concerned, unconditional and sufficiently precise to be relied on by an individual against the State.
42 As the Court held in its judgment of 10 February 1982 in Case 76/81 Transporoute v Minister for Public Works (( 1982 )) ECR 417, in relation to Article 29, the directive' s rules regarding participation and advertising are intended to protect tenderers against arbitrariness on the part of the authority awarding contracts.
43 To this end, as has been stated in relation to the reply to the second question, the rules in question provide inter alia that in checking the suitability of contractors the awarding authorities must apply criteria of economic and financial standing and technical knowledge and ability, and that the contract is to be awarded either solely on the basis of the lowest price or on the basis of several criteria relating to the tender. They also set out the requirements regarding publication of the criteria adopted by the awarding authorities and the references to be produced. Since no specific implementing measure is necessary for compliance with these requirements, the resulting obligations for the Member States are therefore unconditional and sufficiently precise.
44 In reply to the third question it should therefore be stated that the provisions of Articles 20, 26 and 29 of Directive 71/305 may be relied on by an individual before the national courts. | | 274/83 | 29 | W1-17.d
W1-20
W1-22
W1-25.1.a-b
W1-25.1.c
W1-26.1.a-b
W1-26.1.c-e | The fifth paragraph of article 10 of law no 741, to the extent to which it suspends until 31 December 1983 articles 17 and 18 of law no 584 of 8 august 1977, which implement articles 25 and 26 of the directive, is in the commission's opinion incompatible not only with the provisions listing the references which the authority awarding the contract may require in order to assess the contractor's financial and economic standing and technical knowledge and ability, but also with articles 17 (d), 20, 22 and 27 of the directive, according to which the suitability of contractors is to be checked in accordance with the criteria of economic and financial standing and technical knowledge and ability referred to in articles 25, 26 and 27 of the directive. | | C-10/76 | 8 | W1-20.1
W1-24.s1
W1-25.1.a-b
W1-25.1.c
W1-26.1.a-b
W1-26.1.c-e | Finally, articles 20, 24, 25 and 26 of the directive lay down the criteria for qualitative selection which allow certain undertakings to be excluded from participation in the contracts, while the Italian law contains no provision to this effect and retains the wide discretion conferred on authorities awarding contracts by article 89 of the royal decree of 23 may 1924. |
| Case | Pte | Ref | Text | N-980914
Det Danske Handelskammer | 1-4 | S2-27.1-impl
S2-32.2 | 1. Kriteriet »tid« kan ikke anvendes som kriterium i forbindelse med en prækvalifikation, og indklagede har derfor handlet i strid med EU–udbudsreglerne ved at anføre dette kriterium i udbudsbekendtgørelsen. Indklagede har oplyst, at kriteriet ikke blev anvendt ved prækvalifikationen.
2. Kriteriet »kvalitet« er i betydningen »kvalitetssikring«, d.v.s. foranstaltninger, som tjenestyderen har truffet til sikring af kvaliteten, et lovligt kriterium ved en prækvalifikation, jf. Tjenesteydelsesdirektivets artikel 32, stk. 2, litra f, 1. led. Indklagede har oplyst, at kriteriet er anvendt i betydningen »kvalitetssikring«, og det er da også i udbudsbekendtgørelsen i afsnittet »Minimumskrav« anført, at virksomheder i anmodningen om prækvalifikation skal beskrive »de foranstaltninger, tjenesteyderen har truffet til sikring af kvaliteten«. Indklagede har handlet i strid med EU–udbudsreglerne ved ikke i udbudsbekendtgørelsen at angive kriteriet, »kvalitetssikring« på en klar og utvetydig måde.
3. Kriteriet »Profiler af medarbejdere på opgaven« må forstås således, at der ved prækvalifikationen lægges vægt på virksomhedernes oplysninger om kvalifikationerne hos medarbejdere, som virksomheden vil kunne disponere over ved løsningen af opgaver af den beskaffenhed, som er beskrevet i udbudsbekendtgørelsen. Kriteriet er med denne betydning et lovligt kriterium ved en prækvalifikation, jf. Tjenesteydelsesdirektivets artikel 32, stk. 2, litra a. Der er ikke grundlag for at antage, at kriteriet har været anvendt på en ukorrekt måde.
4. Klagenævnet bemærker, at tilføjelsen »Kriterierne er ikke anført i prioritetsorden« efter opregningen i udbudsbekendtgørelsen af kriterierne for prækvalifikationen er meningsløs. [See also earlier N-960530.sagsfremstilling without remarks] |
|
|
