New document is latest step in simplification of public procurement regime, says expert

The European Commission published a new implementing regulation that will give effect to the new standardised ESPD 20 days after the regulation has been published in the Official Journal of the EU.

The ESPD is voluntary for prospective suppliers. EU public procurement reforms finalised in 2014 require public bodies in the EU to allow businesses to rely on self-declarations to demonstrate they prequalify for public contracts, for example by stating that they do not satisfy any of the grounds for mandatory or discretionary exclusion from public procurements, or that they fulfil economic or technical selection criteria.

The new Public Procurement Directive tasked the Commission with developing a standard form to enable self-declaration – the ESPD – for this purpose. Businesses can be required to compile and provide "supporting documents" for their self-declarations. However, the Directive aims to ease this burden on businesses by requiring public authorities to cross-check self-declared information against information included in national databases where this is possible.

In a statement, the European Commission said the ESPD "reduces considerably the administrative burden for companies" looking to win public contracts.

"While some [EU] countries have already introduced some form of a self-declaration of suitability, others require all interested parties to provide full documentary evidence of their suitability, financial status and abilities," the Commission said. "The ESPD will allow all businesses to electronically self-declare that they meet the necessary regulatory criteria or commercial capability requirements, and only the winning company will need to submit all the documentation proving that it qualifies for the contract."

Public procurement law expert Shailee Howard of Pinsent Masons, the law firm behind Out-Law.com, said the publication of the ESPD is "an example of the European Commission’s objective to simplify the tendering process for authorities and bidders alike, and in particular for SMEs".

"Bidders are able to use the ESPD as a public procurement 'passport', allowing them to formally declare that they are not affected by exclusion grounds, that they meet the relevant selection criteria and that they will be able to produce evidence of the same when requested," Howard said.

"Authorities should note that they are free to request submission of such documents at any point of the tendering process and, in any case, shall require them from the preferred bidder when a contract award decision is made. A failure to produce such evidence is a discretionary ground for exclusion under the regulations," she said.

Howard said that the new regulations "do not mandate a time limit within which successful bidders must submit evidence of compliance". This means that "authorities will need to carefully manage the contract finalisation process, including the ability to go to the second placed bidder, for example, to mitigate against the risk of delay at this point", she said.

EU countries have until 18 April 2016 to implement the new Public Procurement Directive into national laws. The Directive has already been implemented in England, Wales and Northern Ireland. Last month the Scottish Government outlined plans to implement the reforms into legislation in Scotland in April this year.

On 1 January new financial thresholds for public contracts above which public procurement rules apply came into effect. In addition, other reforms which came into force on 1 December 2015 provided for new standard forms for public bodies to use when procuring goods, works and services.