1. The contracting authority may make submission of a tender subject to fulfilment of the suitability criteria established by it, in relation to
- economic and financial standing;
- technical and professional ability;
- the enrollment in the register of the country in which the economic operator is established or the permit, licence or membership in a professional organisation or chamber prescribed in his country of establishment, where this is necessary for the performance of the contract.
2. In exceptional cases duly justified in the procurement documents, the contracting authority shall have the right not to prescribe any suitability criteria related to technical and professional ability, provided that the specific features of the public procurement do not require the prescription of such suitability criteria for the purposes of proper performance. No justification is necessary if due to the legal basis of a negotiated procedure without prior publication only one economic operator can be invited to submit a tender. The suitability criteria shall be accurately indicated in the notice launching the procedure. In doing so, the contracting authority shall specify the existence or non-existence, respectively the degree of insufficiency of the circumstances according to the provisions set out in paragraph 1, which excludethat the contracting authority qualifies the tenderer or the candidate suitable for the performance of the contract. The documents to be submitted for certifying compliance with the suitability criteria shall be specified precisely in the notice launching the procedure or in the other procurement documents, by briefly referring to the type of documents to be submitted in the invitation. (This amendment entered into force on 1 January 2017.)
4. The detailed rules pertaining to the ways of certification of suitability and the establishment of suitability criteria shall be set out in a separate act of legislation.
5. For the purposes of reference works, the establishment of criteria to the extent actually necessary in compliance with paragraph 3, shall mean that the contracting authority requires certification of former supply, works or services up to 75 % of the value - calculated without applying Article 19(3)- of the given public procurement or, in case of quantification, up to 75 % of the quantity or scope of the given public procurement and the subject-matter of such supplies, works or services shall be technically equivalent to the given public procurement. The contracting authority shall precsribe the minimum requirement for turnover data concerning tenderers in such a way that - in case of the examination of the total annual turnover - economic operators , having a total turnover in the financial year or years reviewed by the contracting authority that reached the value - calculated without applying Article 19(3) - of the given public procurement or, in case of the examination of the turnover related to the subject-matter of the procurement, having a turnover related to the subject-matter of the procurement that reached 75 % of the value - calculated without applying Article 19(3) - of the given public procurement contract shall not be qualified unsuitable. (This amendment entered into force on 1 January 2017.)
6. The specified suitability criteria may also be met jointly by joint tenderers or joint candidates. For the purposes of the possibility of joint compliance, criteria which apparently concern each economic operator individually, shall only be met by one of them.
7. Tenderers or candidates may also meet suitability criteria by relying on the capacity of any other entity or person, regardless of the legal nature of their relation. In such cases, the tender or, in a procedure consisting of more than one stage the request to participate shall identify that entity and, indicating the related point of the notice launching the procedure, the suitability criterion or criteria for the certification of which the tenderer or candidate relies or relies also on the resources of that entity. Except in the case provided for in paragraph 8, the document containing the commitment which is undertaken in a contract or preliminary contract by the entity providing resources and proves that the resources needed for the performance of the contract will be available during the period of implementation of the contract, shall be annexed to the tender or the request to participate.
8. Under the provisions set out in Article 6:419 of the Civil Code, the entity whose data are used by the tenderer or the candidate for the certification of economic and financial standing shall be liable in the same way as a guarantor for compensating the damage suffered by the contracting authority as a result of nonperformance or non-conformity by the tenderer.
9. In order to certify the fulfilment of the criteria related to the availability of technicians, their educational and professional qualifications, as well as the reference works which prove the relevant professional experience prescribed by the implementation decree of this Act, economic operators shall only rely on the capacities of other entities if such entity will participate in the performance of the contract or in the performance of the element of the contract requiring the capacities to an extent ensuring that the competence and professional experience – together with the tenderer’s own capacities - required by the suitability criteria is achieved during the performance. The economic operator shall rely on the capacities of another entity in order to certify the fulfilment of the criteria laid down in paragraph 1(c) only if the given entity will perform the task in relation to which it is required to be included in a relevant register, to hold membership in a professional organisation or a permit. The commitment to be annexed according to paragraph 7 shall provide proof thereof. The commitment under paragraph 7 shall prove concerning the entity certifying the fulfilment of the requirement of reference works that such entity is actually involved in the performance, the contracting authority shall monitor during the performance of the contract that the level of involvement complies with the provisions set out herein. (This amendment entered into force on 1 January 2017.)
10. In the case of works contracts, service contracts and siting or installation operations in the context of a supply contract, contracting authorities may require that certain critical tasks be performed directly by the tenderer itself or, in the case of joint tenders, by one of the joint tenderers. In such cases, in relation to those tasks, for the purposes of certification of suitability according to paragraph 9 tenderers or candidates may not rely on the capacity of another entity and, contrary to the provision set out in paragraph 7, those tasks may not be delegated to a subcontractor in the course of the execution of the contract.
11. In order to certify his suitability, the economic operator may not rely on data which could be used by him on the basis of succession, without involving the predecessor according to paragraph 7, where the predecessor economic operator is subject to a ground for exclusion applicable in the procedure or, in case of termination of the predecessor, the latter would have been subject to it in the absence of its termination. In such cases, the economic operator may avail himself of the provision set out in Article 64 and shall have the right to rely on data of the predecessor for the certification of suitability, if he demonstrates his reliability in relation to the ground for exclusion that has previously occurred.