According to the wording of the Public Procurement Law, subjective means of proof should be understood as means used to prove the absence of grounds for exclusion, fulfillment of the conditions for participation in the proceedings or selection criteria, with the exception of a statement of not being subject to exclusion, fulfillment of the conditions for participation in the proceedings or selection criteria.
The types and scope of subjective means of proof, as well as other documents and/or declarations that may be demanded by the contracting authority from contractors acting as part of a consortium in a tender, including their period of validity, selection criteria and the form of their submission, are specified, among others, in the Ordinance of the Minister of Development, Labor and Technology of December 23, 2020.
Regarding the subjective means of proof of fulfillment of the conditions for participation in the proceedings or selection criteria for technical or professional capacity for the execution of contracts by a consortium, the provisions of the aforementioned Ordinance stipulate that if a contractor cites experience in the execution of construction works, supplies or services, performed jointly with other contractors, it should submit the following documents/statements at the request of the contracting authority:
- in the case of construction works, the contractor should stop a list of works in the performance of which the contractor directly participated;
- in the case of supplies or services, the contractor should stop a list of supplies or services in the performance of which the contractor directly participated, and in the case of recurring or continuous services, in the performance of which the contractor directly participated or participates.
Thus, at present, it is no longer so much the references or other documents freely chosen by the contractor that can certify due performance of the contract, but the list of supplies, services or works that constitutes confirmation of the tasks performed, as well as the contractor’s experience.