​After the completion of public procurement contracts or after the end of the warranty period proposed for the completion of these contracts, customers are required to issue ascertaining documents on how the relevant contractor has fulfilled its contractual obligations. . Failure to fulfill these obligations or their improper fulfillment will result in a “negative” conclusion (which also includes any damages incurred by the customer).

Once entered on the tenderer’s “record”, such a negative certificate often translates into an “ex officio conviction” to quickly exclude the tenderer from award procedures in which it will attempt to participate. This happens in conditions where, in practice, very often situations arise when evaluation commissions automatically decide to reject as unacceptable any offer submitted by a participant who has a negative ascertaining certificate, without taking into account the possible evidence provided by the tender participant to confirm its authenticity. accordingly, without the request of the customer for such evidence from the tender participant.

Customers lose in such cases that the provisions of Art. 167 of the Law 98/2016 on Public Procurement as subsequently amended (“Law on Public Procurement”) allow the exclusion of participants in expressly specified cases only by confirming the provisions of Art. 171 of the same regulatory act. The rule established by Art. 171 establishes that “any business entity in any of the situations provided for in Art. 167 (which lead to exclusion from the award procedure) may provide evidence that the measures taken by him are sufficient to specifically demonstrate his credibility by referring to the reasons for exclusion“.

Contracting authorities must ensure that the evaluation of tenders is carried out in accordance with the principle of proportionality and respect for the rights of the defence, they cannot assume that they have absolute freedom in this regard, being thus obliged to evaluate each case individually. – the basis of the case, evidence and measures taken by the tenderer (including any corrective measures/ self-cleaning), taking into account the severity and specific circumstances of the violation in question, depending on the specifics of the situation that is the subject of the analysis.

Thus, in accordance with the legislative provisions at the European and national levels, minor violations in the performance of the previous contract should only in exceptional cases lead to the exclusion of the participant from the procedure organized subsequently. In addition, if the participant has taken steps to self-cleaning to correct the situation that led to the issuance of the negative opinion and to confirm compliance with these measures, this aspect may increase the chances of its admissibility in the public procurement procedure organized subsequently, provided that the customer organizing this procedure (i ) asks and considers such evidence and (ii) based on a review of compliance measures, considers it sufficient to demonstrate its reliability.

Among the events in self-cleaning which may be relevant include, for example, measures against the tenderer’s team or organization (for example, severing ties with individuals or organizations involved in the wrongful conduct that gave rise to the supporting certificate), the implementation of reporting and control/compliance systems with applicable law, or adoption of internal reporting and compensation rules.

The Court of Justice of the European Union (CJEU) recognizes the unlimited discretion of contracting authorities to exclude economic entities in the case of optional grounds provided for in the Public Procurement Directive. However, the ECJ emphasizes the need to observe the principle of proportionality in the context of the assessment of exclusion cases related to the reliability/trustworthiness of the economic entity participating in the award procedure, due to the presence of a negative ascertaining certificate, which still has consequences (that is, it does not has been challenged in an administrative court/has not been suspended or which is still within the three/five year period specified in part (5) of Article 171 of the Law on Public Procurement).

Furthermore, the CJEU rules, conclusively, in the light in which the provisions on the exclusion of economic operators from award procedures must be interpreted, that “sthe establishment of a trust relationship between the customer and the winning bidder, therefore, means that this customer is not automatically bound by the assessment made in the previous public procurement contract by another customer, in particular to be able to pay special attention to the principle of proportionality when applying optional grounds to exclude(…)” (see paragraph 27 of the ECJ Judgment of October 3, 2019, Delta case, C‑267/18, ECLI:EU:C:2019:826).

In summary, the legislation and jurisprudence of the CJEU contain sufficient arguments that the issuance of a negative finding certificate does not constitute a sentence of automatic exclusion of the relevant tenderer from all future award procedures. From a legal point of view, customers have the freedom to assess the specific situation of the tenderer in each specific case. Thus, in accordance with the principle of proportionality and the tenderer’s right to defense, the contracting authority can decide if the tenderer provides sufficient evidence of the effective implementation of the measures self-cleaning capable of correcting the situation that led to the issuance of the ascertaining certificate, rather than rejecting its offer.

Article by Mihai Baykoianu, attorney, public procurement lawyer Schoenherr and SCA Associates