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The European Single Procurement Document

  • United Kingdom
  • Public procurement - Briefings

21-01-2016

On 6 January 2016, the European Commission published an implementing regulation establishing a standard form for the European Single Procurement Document (“ESPD”).

The ESPD is one of the new features of EU procurement regulation introduced by the 2014 public sector directive (2014/24). The directive was implemented in the UK (other than Scotland) last February by means of the Public Contracts Regulations 2015.

The ESPD is essentially a self-declaration which procurers must accept as preliminary evidence that a supplier meets the relevant selection criteria, and where applicable, the objective rules and criteria for shortlisting, and that the grounds for exclusion do not apply. Accordingly, the ESPD obviates the need for suppliers to produce (at least at the beginning of the process) the substantial number of certificates and other documents issued by public authorities or third parties and which evidence compliance with these requirements.

An important incentive in introducing the ESPD was the desire to make it easier for SMEs to participate in public procurements by reducing the administrative burden arising from the requirement to produce such evidence (upfront).

At the same time, the procurement rules permit contracting authorities to require at any time during a tender process any supporting documentation which is necessary to ensure the proper conduct of that process. Separately, other than in relation to certain contracts based on framework agreements, the bidder to whom it was decided to award the contract must submit up-to-date supporting documents that verify the statements made in the context of the ESPD.

There are specific rules that apply in cases where, among other things, a supplier is relying on the capabilities of other entities in order to demonstrate compliance with the selection criteria or the party expressing an interest is a consortium.

It should be noted that a supplier may be excluded from a procurement procedure in cases of serious misinterpretation in submitting the ESPD or in supplying the information necessary for the verification of the statements in the ESPD or in circumstances where the supplier is unable to submit supporting documents.

Separately, the ESPD will be relevant also in the context of the utilities regime (Directive 2014/25) where a regulated utility applies the exclusion and selection criteria provided for under the public sector rules. The implementing regulation enables Member States to require or permit procurers (both public bodies and utilities) whether to use the ESPD also in relation to the award of concession contracts or contracts which are not subject (or not fully subject) to the detailed procurement rules.

The implementing regulation comes into force on 26 January 2016. We understand that the Government is currently considering how best to ensure that its guidance and standard documents on selection are aligned with the ESPD and that a procurement policy note and accompanying guidance will be published shortly. We would hope that in this context the Government would also clarify related issues such as whether the ESPD would be available in relation to concession contract awards and services contracts the award of which is subject to the light touch regime.

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