The Single European Certificate for Public Procurement (hereinafter also referred to as "JEO") is a tool whose aim is to reduce both the administrative and financial burden of participation in the procurement process. Through this instrument, individual suppliers can submit a standardized affidavit as part of proving that they have met the conditions of participation, instead of the previous need to submit individual certificates, certificates and other documents (in addition, they are often required in different forms according to the specific requirements of the contracting authority). This should facilitate the participation of especially small and medium-sized enterprises or also foreign suppliers, who will no longer have to search for sample certificates used abroad. JEO therefore has the potential for these entities to simplify the preparation of their bids, so that they have a wider opportunity to participate in individual procurement procedures. In the case of this wider participation of suppliers, the contracting authorities have the opportunity to obtain performance in better quality and at a lower price. The result should be greater democratization of the public procurement process and support of free competition within the common European market.
For this reason as well, some call the JEO a revolutionary institute in the field of public procurement, which is supposed to replace the existing system, which differed in individual member states, when some of them already allowed a certain form of self-declaration by suppliers, while others required the submission of a wide range of documents to demonstrate compliance with the conditions of participation and qualification. The aim of the introduction of the JEO is also to reduce the bureaucracy within the framework of the procurement procedures, i.e. to offer a simple and unified document that contains a set of standardized questions for all entities within the EU.
JEO's goals are so grand and undoubtedly noble. However, are they also fulfilled in the practice of awarding contracts?
In order to find the answer to this question, let's first imagine JEO.
From a legal point of view, the JEO represents a flat-rate sworn statement about the competence and suitability to fulfill the relevant public order. This institute was introduced by the so-called general procurement directive 2014/24/EU (hereinafter referred to as "contract directive") in Article 59. The standard form for JEO as well as the general instructions for filling it in were established by the implementing regulation of the EU Commission 2016/7 (hereinafter "implementing regulation"). The form is available in the languages of all EU member states, and in the future it is assumed that the JEO will be submitted exclusively in electronic form. However, for a temporary period (until April 18, 2018), the form can also be submitted in printed form as part of the applicant's offer (1).
For the purposes of Czech Act No. 134/2016 on public procurement (hereinafter only as "ZZVZ"), which reflects the regulation of the directive, a single European certificate means a written sworn statement by a participant in the procurement procedure to demonstrate his qualifications, including through another person, replacing documents issued by public administration bodies or third parties on a form made available in the e-Certis information system. The unified European certificate for public contracts confirms the fulfillment of the conditions of participation, or the criteria for reducing the number of participants in the procurement procedure (§ 87 ZZVZ). In this context, it is appropriate to mention that, in addition to the JEO, the Czech ZZVZ in § 86 paragraph 2 allows suppliers to replace the submission of documents with a "standard" affidavit in the request for participation, preliminary offer or offer, unless the contracting authority stipulates otherwise in the procurement documentation. Therefore, if the contracting authority stipulates otherwise and excludes the option of replacing documents with a sworn statement, the contracting authority is also obliged to always accept JEO instead of documents from suppliers (cf. § 86, paragraph 2, ZZVZ, last sentence). In this respect, JEO has an advantage over a normal sworn statement.
Another advantage of JEO is that it is possible to submit this form repeatedly. The supplier does not have to obtain a certificate for each public order separately, as long as the information contained in it is still up-to-date (2). However, submission of the JEO is always an optional option for the supplier, not his obligation. The supplier may decide to submit the same documents or the aforementioned "standard" sworn statement in the offer, unless the contracting authority excludes this option.
However, even the use of the JEO institute does not mean that the supplier will not have to submit documents to prove that the conditions of participation have been met at all. The JEO, on the other hand, contains a formal declaration by the supplier that he will be able to submit the documents to the contracting authority upon request and without delay (3). In this regard, the procurement directive refers to the JEO as a preliminary document (4). Preliminary because it does not exempt the supplier from the obligation to submit relevant documents, but by default it should only be the winning supplier. Before concluding the contract, the contracting authority is obliged to always request the submission of originals or certified copies of qualification documents from the selected supplier, if they were not already submitted in the procurement procedure (cf. § 86, paragraph 3 ZZVZ). The supplier must therefore be prepared to submit the documents without undue delay in case he becomes the winning bidder. In this regard, it is therefore appropriate that suppliers take this fact into account when planning their participation in a specific procurement procedure and do not leave the procurement of documents to the last minute in order to avoid potential exclusion in the event that they do not submit the documents in time.
In addition to the selected supplier, however, the contracting authority may at any time during the procurement procedure request the submission of documents or parts of them from other suppliers, but only if this is necessary to ensure the proper conduct of this procurement procedure (5). In this context, the executive order directs contracting authorities to ensure that economic entities are not subject to an excessive administrative burden in the form of systematically requiring certificates or other types of documents from all participants in a given procurement procedure, or that there is no discriminatory selection of economic entities from which they will be such documents required (6). Thus, contracting authorities should not abuse this authority and, in accordance with the principle of proportionality, use it more when doubts or ambiguities arise on their part. The opposite procedure would mean an excessive administrative burden for the supplier, which would be contrary not only to the principle of proportionality, but also to other objectives of the introduction of JEO (7).
If the public contracting authority can obtain these additional documents directly by accessing a national database that is accessible free of charge, such as the national public procurement register, a virtual company file, an electronic document storage system or a pre-qualification system, suppliers are then obliged to submit the relevant document they do not have, and the contractor is obliged to procure it himself through these databases. Contractors from other Member States should also be able to view these databases under the same conditions. In addition, Member States should make available in e-Certis an updated complete list of databases containing relevant information on economic operators (8). Therefore, if it is possible for the contracting authority to obtain, for example, an extract from the relevant register in electronic form, the supplier is only obliged to indicate in the JEO where this data is available (i.e. name of the database, internet address, designation of the file or record, etc.) , so that the contracting authority can obtain this information. By providing this information, the supplier also expresses his consent for the contracting authority to obtain the relevant documentation in accordance with the relevant regulations on the processing of personal data, in particular on special categories of data, e.g. on illegal acts, on judgments in criminal cases or on security measures (9).
Economic entities are not obliged to submit documents even if the contracting authority already has them (cf. § 86, paragraph 4 ZZVZ, where it is stated that "the supplier is not obliged to submit to the contracting authority the documents certifying the facts contained in the unified European certificate for public procurement, if the contracting authority informs that he has already submitted them to him in the previous procurement procedure". The professional literature in this context states that in such a case the supplier should indicate which specific the facts have already been proven in a previous procurement procedure with the help of a JEO and specifically specify the identification data of the procurement procedure in which this JEO was submitted by the supplier. With regard to this possibility, it is also necessary to address the question of how long back the supplier can refer to the JEO that he submitted according to some authors, it is possible to refer to the previous submission of the JEO only on the condition that this certificate, which was submitted in the previous procurement procedure, still proves the fulfillment of the qualification according to the current requirements of the contracting authority in the current procurement procedure) (10).
When it comes to the entities that fill out the JEO, it is not just suppliers. In fact, within the JEO, suppliers provide relevant data on entities whose qualifications or they intend to use the qualification so that it is possible to verify this data together and under the same conditions as in the case of the verification of data on the main supplier. Therefore, if the supplier participates in the procurement procedure itself, but intends to use the competence or qualifications of one or more other entities (typically subcontractors), it must ensure that the contracting entity receives one JEO form from the supplier as well as one separate JEO form containing relevant data for each entity , whose eligibility or qualification he intends to use. Subcontractors do not fill in the entire JEO form, but as a minimum they must fill in parts II A (Economic operator data), B (Economic operator representative data) and part III (Reasons for exclusion). Parts IV (Qualification criteria for selection) and V (Reduction in the number of qualified applicants) will only need to be completed if requested by the contracting authority, who should indicate in the procurement documentation to what extent the given parts are to be completed. If the suppliers participate in the procurement procedure together as a supplier association (including temporary associations), each of the participating suppliers must submit a separate JEO in which they fill in the information in parts II to V (11). It is therefore very important for individual economic entities to realize in what position they enter the procurement process, as the way of completing their JEO depends on it.
When filling in the individual parts of the JEO form, the supplier provides only the relevant information required by the public contracting authority. In order to avoid administrative burdens and to ensure that suppliers do not provide contradictory information in different parts of the JEO, the contracting authority should clearly determine in advance which of these data economic entities are required to provide in the JEO, either in the invitation to participate or in the procurement documentation. In this context, the contracting authority should also explicitly indicate whether the information in parts II (Data on economic entity) and III (Reasons for exclusion) must also be provided for subcontractors whose competence or qualifications the supplier doesn't want to use. The completion of the JEO therefore depends on the scope and type of the client's requirements. The JEO form itself directs suppliers in the instructions to provide information depending on the contracting authority's requirements. In this regard, it is so necessary that applicants carefully perceive these requirements. According to the implementing regulation, suppliers are directly obliged to carefully study the tender documentation for this purpose (12), because in practice it happens that bidders state facts and provide information that the contracting authority does not require and, conversely, the information and declarations that they require remain unnoticed in the JEO form. Quite realistically, it may happen that, in the case of the contracting authority's strict judgement, the applicant will be excluded from the procurement process due to one "unchecked box" on the form. The mentioned situation can also be a problem for the contracting authority itself, since in such a case the latter does not know whether the supplier's mistake consisting in simply failing to check the box with the relevant information should or should not establish a reason for his exclusion. Problems can also arise in cases where the selected supplier ticks the appropriate box that he meets the criteria for selection, but without providing any further details on the required information. In this context, it is possible to imagine a situation where the supplier's opinion on the content of the given information will not correspond to the client's idea, when the client will find this out only at the moment when the selected supplier will be asked to submit documents before the contract is concluded. In this context, some point to the inefficiency, uneconomical and unnecessary prolongation of procurement procedures in cases where the selected supplier, who is invited by the contracting authority to submit documents before concluding the contract, submits documents that are incomplete or with discrepancies. Such a supplier will then be asked to clarify the documents, which, if not rectified, may lead to the exclusion of this supplier and the contracting authority will thus have to turn to the supplier second in the order, where, however, a similar scenario may occur. The contracting authority therefore turns to the next supplier in the order, etc. In such cases, it cannot be ruled out that, in order to ensure an orderly process, the contracting authorities will standardly call for the submission of documents from more suppliers than just the selected supplier (e.g. suppliers in the first three places) and even earlier than at the end of the submission process. It should also be pointed out that in extreme cases, when business entities provide significantly distorted data in the JEO, or in cases where they do not provide this information or when they do not present supporting documents, they may be excluded from the procurement procedure, including the application of other potential sanctions. For all these reasons, it is more than appropriate that the contracting authorities give the suppliers a guide in the procurement documentation which section to fill in the JEO. For this purpose, it is also possible to use the European Commission's application containing the JEO electronic form on the site free of charge https://ec.europa.eu/tools/espd/filter?lang=cs . In this application, according to the conditions of participation determined for them and the requirements stated in the notice/invitation and in the tender documentation, the contracting authority ticks the relevant fields in the form, thereby creating an electronic structure of its requirements and thus making the JEO accessible to economic entities only to the extent of the contracting authority's requirements, which significantly reduces the error rate and the difficulty of filling it out.
In order to facilitate the filling in of the JEO, the implementing regulation also encourages the Member States themselves to issue instructions clarifying, for example, such facts as the relevant provisions of national law in relation to Part III, Section A (Grounds relating to criminal convictions), or what references and the information must be submitted by the business entity so that the contracting authorities can obtain the relevant certificate in electronic form. Czech Republic, or its individual authorities have not adopted such instructions for the time being, in comparison with, for example, Slovakia, where the Public Procurement Office there has already issued a relevant manual for this purpose.
As already indicated above, despite the JEO "instructions for use" (whether originating from the contracting authority or from the state authority), increasing problems with the use of this institute are beginning to appear in the practice of individual member states. Filling out this form correctly turned out to be one of the biggest challenges. The wording of the JEO seems to be difficult for applicants to understand. Therefore, questions are received daily from individual suppliers in order to clarify at what point, for whom and if the use of JEO is necessary at all, how to grasp the individual parts of JEO or what is important to mention within them, etc. Opinions have thus appeared that the preparation of JEO in practice is significantly more complex and cumbersome than filling in and signing the forms provided by the contracting authority.
With regard to the outlined problems that have occurred in JEO application practice so far (that is, in the period of less than one year since the implementing regulation introducing JEO came into force), it is therefore clear that despite its progressive goals (especially reducing the administrative and financial burden of submitting offers in procurement procedures), this institute represents an increasingly greater burden for some suppliers rather than facilitating their participation in procurement procedures. In order to properly fill out the JEO, suppliers often cannot do without professional help. In some cases, the application of this institute may also lead to an inefficient and uneconomic prolongation of procurement procedures. However, JEO is an institute in the process of continuous improvement. For this purpose, the European Commission collects initiatives from individual member states to improve its quality. In the future, modifications of this instrument can be expected in this regard. At present, however, it can be concluded that the JEO could fully serve its purpose only when individual suppliers fully master the proper procedure for filling it in, or when the instrument in question will be simplified, taking into account the incentives for its improvement, so that its preparation and use in the framework of procurement procedures does not represent any major practical problem for any business entity.
Source: epravo
The team of the Vych & Partners, s.r.o. law office
(1) cf. Commission Implementing Regulation (EU) No 2016/7 of 5 January 2016 establishing a standard form for a single European certificate for public procurement, Annex 1 - Instructions for completion;
(2) cf. Article 59(1) of Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC;
(3) cf. JEO Standard Form Part VI: Closing Statements;
(4) cf. Article 59(1) of Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC;
(5) cf. Article 59(4) of Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC;
(6) cf. Commission Implementing Regulation (EU) No 2016/7 of 5 January 2016 establishing a standard form for a single European certificate for public procurement, Annex 1 - Instructions for completion;
(7) cf. ASPI's commentary on § 53, paragraph 4 of the ZZVZ;
(8) cf. Article 59(5) of Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC;
(9) cf. Commission Implementing Regulation (EU) No 2016/7 of 5 January 2016 establishing a standard form for a single European certificate for public procurement, Annex 1 - Instructions for completion;
(10) cf. ASPI's commentary on § 86, paragraph 4 of the ZZVZ;
(11) cf. Preamble to Commission Implementing Regulation (EU) No. 2016/7 of 5 January 2016 establishing a standard form for a single European certificate for public procurement;
(12) cf. Commission Implementing Regulation (EU) No 2016/7 of 5 January 2016 establishing a standard form for a single European certificate for public procurement, Annex 1 - Instructions for completion.
