European Single Procurement Document mandatory for procurements above European thresholds as from 18 April 2016

As from 18 April 2016, the European Single Procurement Document ("ESPD") is mandatory for procurements above the European thresholds.

The European Commission adopted an Implementing Regulation in connection with EU Directive 2014/24 on public procurement on 5 January 2016. With a view to reduce the administrative burden arising from the requirement to produce a substantial number of certificates or other documents related to exclusion and selection criteria, the Implementing Regulation establishes a standard form for the ESPD.

Under the Implementing Regulation, tenders in open procedures and requests for participation in restricted procedures, competitive procedures with negotiations, competitive dialogues or innovation partnerships, must now be accompanied by an ESPD.

The ESPD is a self-declaration by economic operators providing preliminary evidence replacing the certificates issued by public authorities or third parties. As provided in Article 59 of EU Directive 2014/24, it is a formal statement by the economic operator:

• that it is not in one of the situations in which economic operators shall or may be excluded,
• that it meets the relevant selection criteria, and
• that, where applicable, it fulfils the objective rules and criteria that have been set out for the purpose of limiting the number of otherwise qualified candidates to be invited to participate.

The standard form of the ESPD attached to the Implementation Regulation counts 13 pages.

It should be noted that, except in relation to certain contracts based on framework agreements, the tenderer to whom it is intended to award the contract will nevertheless have to provide up-to-date certificates and supporting documents.

Most importantly, the Implementing Regulation is directly applicable for procurements above the European thresholds as from 18 April 2016, regardless of the national implementation of EU Directive 2014/24 or their entry into force:

“From the moment the national measures implementing Directive 2014/24/EU enter into force, and at the latest from 18 April 2016, the standard form set out in Annex 2 to this Regulation shall be used for the purposes of drawing up the European single procurement document referred to in Article 59 of Directive 2014/24/EU. Instructions for its use are set out in Annex 1 to this Regulation.” (article 1)

“This Regulation shall be binding in its entirety and directly applicable in all Member States.” (article 2)

As a reminder, although the Belgian act implementing EU Directive 2014/24 was adopted recently, it will most probably not enter into force before January 2017.