Background
A contracting authority excluded Partner Dariusz Apelski from a procurement for the mechanical cleansing of roadways in Warsaw. Partner's tender relied on a sub-contractor located in a relatively remote Polish town to perform part of the services, and supplied an undertaking from the sub-contractor to make the necessary resources available.
The contracting authority did not consider that Partner had the necessary means to execute the contract and excluded it from the procurement. Partner appealed and a number of questions were referred to the European Court of Justice (ECJ), including:
- the interpretation of the Public Sector Directive (2004/18/EU)
- the extent to which Directive 2014/24 can be used to assist in the interpretation of the provisions of the Public Sector Directive
Opinion
After considering the questions referred to the ECJ, the Advocate General was of the view that:
- the Public Sector Directive imposes no substantive limitation on the circumstances in which a tenderer may rely on the capacity of other entities to prove it will have the technological or professional ability required to perform the contract. The nature of the links between the tenderer and the third party entity are irrelevant. However, the tenderer must be able to prove to the contracting authority that it has at its disposal all the means to execute the terms of the contract.
- Directive 2014/24/EU can be used as a guide to interpreting the Public Sector Directive even though the period for implementing Directive 2014/24, in Poland, is yet to expire. This applies 'in so far as it codifies case law applying Directive 2004/18, or adds detail thereto, but is neither contrary to Directive 2004/18 nor sets out unconditional rules or conditions to the detriment of economic operators'.
(Case C 324/14 - PARTNER Apelski Dariusz v Zarzad Oczyszczania Miasta).
For more information or advice on this or any other procurement issue you may be facing, please contact Stephanie Rickard on 0117 314 5675.