This article is an excerpt from the 2021 edition of The Art of Tendering: A Global Due Diligence Guide, which is available for purchase.
In its July 2016 decision in Ambisig — Ambiente e Sistemas de Informação Geográfica SA v. AICP — Associação de Industriais do Concelho de Pombal, the European Court of Justice struck down a statutory provision in a Portuguese procurement law that required bidders to submit a notarized declaration with their bids. The dispute dealt with a tendering process for a public service contract which required the submission of a technical certification letter from a past customer or, alternatively, a notarized self-declaration. The complainant, a bidder that was rejected for failing to meet that technical certification requirement, brought a legal challenge against the validity of the notarization requirement. The Court agreed that the notarization requirement imposed unnecessary barriers to competition that were contrary to the European procurement rules and therefore void:
It must be found that requiring the signature on the private purchaser’s certification to be authenticated would introduce a formality amounting to such a substantive change to the first of the two means of evidence referred to in the second indent of Article 48(2)(a)(ii) of Directive 2004/18, making more burdensome the steps which must be taken by an economic operator in order to discharge his burden of proof, which would be contrary to the general scheme of that article.
As regards the purpose of Directive 2004/18, it must be borne in mind that, as is apparent from recitals 1 and 2 thereof, that directive lays down coordinating rules intended, in particular, to simplify and modernise the national procedures for the award of public contracts, in order to facilitate the freedom of movement of goods, freedom of establishment, the freedom to provide services and the opening-up of such contracts to competition.
In particular, as is apparent from the case-law of the Court, that directive seeks to facilitate the involvement of small-and medium-sized undertakings in the public contracts procurement market, as stated in recital 32 of that directive (see, to that effect, judgments of 10 October 2013 in Swm Costruzioni 2 and Mannocchi Luigino,C-94/12, EU:C:2013:646, paragraph 34, and 7 April 2016 in Partner Apelski Dariusz,C-324/14, EU:C:2016:214, paragraph 34).
However, as the Advocate General observed in points 80 and 81 of his Opinion, making the evidential value of the private purchaser’s certification conditional on its signature being authenticated by a third party would introduce a formality likely not to open up public contracts to the broadest competition possible, but to restrict and limit the involvement of economic operators, in particular foreigners, in such contracts.
Because of the short time limits normally set for the submission of applications in contract notices and the divergences between the various national laws as to the authentication of the signature of documents, it cannot be excluded that many operators, above all foreigners, may be dissuaded from submitting their tenders in view of the practical difficulty of producing, in the Member State concerned by the procurement, a certification bearing a duly authenticated signature.
Consequently, the general scheme and purpose of Directive 2004/18 endorse the interpretation that the private purchaser’s ‘certification’, like the ‘certified declaration’ in the Portuguese-language version of the second indent of Article 48(2)(a)(ii) of that directive, requires only that a certificate drafted by that purchaser is produced and cannot be made subject to any other formality by the contracting authorities, such as the authentication of the purchaser’s signature by a competent entity.
The Court therefore struck down the statutory requirement in the Portuguese law. As this case illustrates, purchasing institutions should avoid imposing unnecessary requirements in their bidding processes since procurement rules typically prohibit imposing unnecessary restrictions and barriers to competition, particularly when those requirements put a disproportionate burden on smaller suppliers or suppliers from other jurisdictions.
