2.3.3. Exclusion criteria
I- Exclusion criteria applicable for participation in procurement and grant procedures:
Candidates, tenderers or applicants will be excluded from participation in procurement and grant procedures if:
- they are bankrupt or being wound up, are having their affairs administered by the courts, have entered into an arrangement with creditors, have suspended business activities, are the subject of proceedings concerning those matters, or are in any analogous situation arising from a similar procedure provided for in national legislation or regulations;
- they, or persons having powers of representation, decision making or control over them, have been convicted of an offence concerning their professional conduct by a judgment of a competent authority of a Member State which has the force of res judicata; (i.e. against which no appeal is possible);
- they, or persons having powers of representation, decision making or control over them, have been the subject of a judgment which has the force of res judicata for fraud, corruption, involvement in a criminal organisation, money laundering or any other illegal activity, where such an illegal activity is detrimental to the EU's financial interests;
Points (a) to (d) do not apply to the purchase of supplies on particularly advantageous terms from either a supplier which is definitively winding up its business activities or from the receivers or liquidators of a bankruptcy, through an arrangement with creditors, or through a similar procedure under national law.
Points (b) and (e) do not apply when the candidates, tenderers or applicants can demonstrate that adequate measures have been adopted against the persons having powers of representation, decision making or control over them who are subject to the judgement referred to in points (b) or (e).
Points (a), (c) and (d) do not apply if duly justified by the contracting authority in negotiated procedures where it is indispensable to award the contract to a particular entity for technical or artistic reasons or for reasons connected with the protection of exclusive rights.
The cases referred to in point (e) are the following:
1) cases of fraud as referred to in Article 1 of the Convention on the protection of the European Communities' financial interests drawn up by the Council Act of 26 July 1995;10
2) cases of corruption as referred to in Article 3 of the Convention on the fight against corruption involving officials of the European Communities or officials of Member States of the European Union, drawn up by the Council Act of 26 May 1997;11
3) cases of involvement in a criminal organisation, as defined in Article 2 of Council Framework Decision 2008/841/JHA12
4) cases of money laundering as defined in Article 1 of Directive 2005/60/EC of the European Parliament and the Council13;
5) cases of terrorist offences, offences linked to terrorist activities, and inciting, aiding, abetting or attempting to commit such offences, as defined in Articles 1, 3 and 4 of Council Framework Decision 2002/475/JHA14
II- Exclusion criteria applicable during the procurement and grant procedures
Contracts may not be awarded to candidates, applicants or tenderers who, during the procurement or grant award procedures:
Candidates, tenderers or applicants other than those in a restricted procedure, negotiated procedure or competitive dialogue, must sign a declaration together with their applications, certifying that the entity does not fall into any of the exclusion situations cited under points I and II.
Information on the ownership/management, control and power of representation of the entity and a certification that they do not fall into the relevant exclusion situations must be provided where specifically requested by the contracting authority. This may be the case where there are doubts about the personal situation and in consideration of the national legislation of the country in which the tenderer, candidate or applicant is established.
However, for procurement contracts with a value of EUR 20 000 or less, the contracting authority may refrain from requiring a declaration depending on its risk assessment. For grants, no declaration shall be required for contributions of EUR 60 000 or less.
Following the notification of award, tenderer(s) to which the contract is to be awarded (including consortium members), must supply evidence that they do not fall into the exclusion situations, unless such evidence has already been submitted earlier in the procedure.
In restricted procedures for services and for the competitive dialogue, these supporting documents must be sent together with the tender and verified by the contracting authority before signature of the contract with the successful tenderer(s). In restricted procedures for works, these supporting documents must be sent together with the application. Evidence of non-exclusion must be provided by all candidates invited to tender. In addition, the tenderers and candidates must certify that the situation has not altered since the date of issue of the evidence. As regards subcontractors and experts, where specifically requested by the contracting authority, the successful tenderers must submit a declaration from the intended subcontractor/expert, and/or documentary evidence that the subcontractor/expert is not in one of the exclusion situations.
For procurement contracts with a value of less than the international thresholds (services <EUR 300 000, supply <EUR 300 000, works <EUR 5 000 000) the contracting authority may waive the obligation to submit documentary evidence, depending on its risk assessment. Furthermore, a waiver may be granted where documentary evidence has been submitted in the past 12 months to the contracting authority for another procedure, provided that this evidence is still valid. In all cases, evidence may still be required in case of doubts.
For grants, generally no documentary evidence is required.
As satisfactory evidence that the candidate, tenderer or applicant is not in one of the situations described in :
(a), (b) or (e) of point I (Exclusion criteria applicable for participation in procurement procedures), the contracting authority will accept a recent extract from the judicial record or, failing that, a recent equivalent document issued by a judicial or administrative authority in the country of origin or provenance showing that the requirements are satisfied. For (d), the contracting authority will accept a recent certificate issued by the competent authority of the State concerned. Where no such document or certificate is issued in the country concerned15 and for the other exclusion criteria listed in point I, it may be replaced by a sworn/solemn statement made before a judicial or administrative authority, a notary or a qualified professional body in the country of origin or provenance.
Whenever one candidate, tenderer or applicant, due to its nature (for instance, national public administrations and international organisations), cannot fall into some of the categories above and/or cannot provide the documents indicated above, a simple declaration explaining their situation will suffice.
The documents may be originals or copies; however originals must be made available to the contracting authority upon request. The date of issuing of the documents provided must be no earlier than one year before the date of submission of the tender. If the supporting documents are not written in one of the official languages of the European Union, a translation into the language of the procedure must be attached. Where the documents are in an official language of the European Union other than the one of the procedure, they have to be accepted. It is, however, strongly recommended that a translation into the language of the procedure be provided, in order to facilitate the evaluation of the documents.
Delegated contracting authorities can, if necessary, consult the relevant European Commission services in order to judge the situation of the candidates, tenderers or applicants.
Note that, before excluding a candidate, tenderer or applicant from a procurement or grant procedure, principles such as the right of defence and proportionality must be considered. To that end, unless the evidence is such that no further investigation is necessary (for example in case of a judgement of a competent authority of a Member State which has the force of res judicata), a contradictory procedure with the candidate, tenderer or applicant should be ensured.
Before taking the award decision at the very latest, the contracting authority must check whether any of the parties involved (i.e. applicants and co-applicants, candidates or tenderers, including affiliated entity(ies), indicated subcontractors and individual experts) have been recorded by the Early Warning System (EWS). The contracting authority cannot conclude a contract with entities which are recorded at exclusion level of the EWS16. If any of the parties involved are recorded in the EWS at other level, measures to strengthen monitoring should be applied during the execution of the contract and payments. Where the contracting authority limits the number of candidates invited to submit a tender or full proposal, e.g. in a restricted procedure, such checks must be conducted before the candidates are selected.
10OJ C 316, 27.11.1995, p.48.
11OJ C 195, 25.6.1997, p. 1.
12OJ L 300, 11.11.2008, p. 42.
13OJ L 309, 25.11.2005, p. 15.
14OJ L 164, 22.6.2002, p. 3.
15Information from the 28 Member States, some Candidate Countries and EEA countries on the different forms of documentary evidence issued/acceptable in each of the countries is available via the eCERTIS tool, which is managed by the Internal Market DG: - http://ec.europa.eu/internal_market/publicprocurement/e-procurement/e-certis/index_en.htm.
16European Commission Decision of 16 December 2008 on the Early Warning System for the use of authorising officers of the European Commission and the executive agencies (2008/969/CE, Euratom) OJ 2008 L 344 of 20 December, p. 125 (http://www.cc.cec/budg/i/early-warning/early-warning-system-intro-en.html ).