Public Contracts Regulations 2015 - Regulation 64

Regulation 64 - Recognition of official lists of approved economic operators and certification by certification bodies

Regulation 64 establishes the rules surrounding the use of official lists and certification by certification bodies that contracting authorities may accept in a public procurement procedure. Albert's long entry is here.

This is an interesting Regulation as most of it pertains to England, Wales and Northern Ireland but concludes in paragraph 10 stating that there are no official lists of approved economic operators or certification by certification bodies in these jurisdictions. In other words, it appears it only exists to enable economic operators based in other Member States to use lists and certificates from said Member State.

By and large the logic of this Regulation is to reduce the transaction costs to both parties. Why on earth the lawmaker decided to not take up this opportunity for simplification and reducing the transaction costs in procurement is beyond me. Maybe a case of "not invited here syndrome"? After all the Directive does not include a mandatory obligation of creating approved lists or certifying bodies.

The savings in transaction costs occur by enabling economic operators to undertake the work of being included on an approved list or certified by a third party body. The contracting authority also benefits from the reduction as it will only have to check for the validity of the certificate or inclusion in the list, effectively outsourcing the cost of checking the underlying evidence to a third party, at least in first instance. The contracting authority may ask for the underlying evidence if there is justification to do so (paragraph 3).

As with standards in technical specifications, the participation and certification of economic operators is subject to "or the equivalent test", ie they cannot be forced to be in said list or have the certificate but can prove they comply with the requirements covered by them (paragraphs 7 and 8).

Public Contracts Regulations 2015 - Regulation 44

Regulation 44 - Test reports, certificates and other means of proof

Regulation 44 defines what means of proof contracting authorities can require economic operators to provide as means to ensure their compliance with the technical specifications, award criteria or contract performance conditions.

The general rule is that contracting authorities may require the submission of certificates by economic operators. As with Regulation 43, even if the requirement is for the certificate of a specific certifying body (as defined by Regulation (EC) 765/2008), the contracting authority is under the obligation of accepting "equivalent" certificates. I assume that this is yet another situation whereby the Directive lawmakers feared a temptation by contracting authorities to use national certifying bodies.

Furthermore, again as with Regulation 43, an escape valve is provided to economic operators without the required certificates or test results: the contracting authority will be forced to accept alternative means of proof as long as the substantive requirements of the absent certificate are complied with *and* the lack of access to the certificate is not attributable to the economic operator. My take is that English and Welsh contracting authorities will not be able to exclude foreign economic operators for not providing certificates from the UK, but will be able to do so if the economic operators did not get an equivalent certificate from their own country. This assumes, of course, that the contracting authority knows that in Slovenia or Sweden there are equivalent certifying bodies and that the economic operator could have had access to the appropriate certificates on time.