Is it always possible to rely on the credentials, experience, qualifications or education of a consortium member?

In a judgment of September 2023 in the case ref. no. KIO 2591/23, the National Appeals Chamber resolved the issue of whether it is possible to rely on the powers, experience, qualifications or education of a consortium member.

In the factual situation, doubts were raised by the content of the statement submitted to the ordering party regarding determination of which construction works would be performed by individual consortium members.

The Chamber pointed out that in the case of reliance by members of a consortium on the entitlements, experience, qualifications or education of a member of such a consortium, combining capabilities of the consortium members to confirm the fulfillment of the conditions for participation in the procedure must not be done arbitrarily, but in a real and viable manner. Indeed, the ratio legis of Article 117 sec.4 of the Public Procurement Law (PPL) is to make it possible to verify whether the planned division of tasks among consortium members ensures the real use of their declared resources in order to confirm the fulfillment of the conditions for participation in the procedure.

The statement made pursuant to Article 117 sec. 4 of the PPL should therefore be analyzed by the ordering party in light of the purpose for which it is made by the contractor. The regulation contained in Article 117 of the PPL is an implementation of Article 63 sec.1 of Directive 2014/24/EU. Although this provision refers in its main part to the issue of reliance on the capabilities of third parties, in the last part the legislator clearly indicated that the provisions of Article 63 sec.1 also apply to the group of contractors referred to in Article 19 sec.2 of the Directive. Thus, the ability of a consortium to rely on the experience of any of the consortium members is contingent on the performance by that consortium member of construction works that require any of these capabilities.

The Chamber stressed that, as in the area of reliance on the capabilities of third parties, also in the context of reliance on the capabilities of a consortium, the purpose of the regulations in question is to ensure that the experience of a given consortium member is made available in real terms within the consortium, and therefore the statement must not be a mere formal document, but an assurance of real participation in a specific part of the performance of the contract by a given consortium member.