In March 2024. The National Chamber of Appeal (NCA), in case ref. no. KIO 721/24, outlined detailed rules of conduct in the event that a contractor has a problem obtaining references or other documents from another contracting authority to demonstrate fulfillment of the conditions for participation in a public procurement procedure for supplies or services.
The appellant accused the contracting authority of selecting the bid of a contractor who, instead of submitting proper references or evidence from the contracting authority to demonstrate the necessary experience, submitted a statement that, for reasons beyond his control, he was unable to obtain references from another contracting authority for which he had performed certain services cited in the subjective evidence.
The NCA agreed with the appellant that, although the contractor whose bid was selected had submitted a legally permissible self-declaration in lieu of submitting references or other evidence in this regard, it did not meet the necessary requirements for its effectiveness. In fact, the NCA stated that the submission of a self-declaration in lieu of a reference is an exception to the principle of a contractor’s legitimacy with references or other documents prepared by the entity for whom the services were performed, and in order to make its presentation possible, certain prerequisites must be present.
According to the NCA’s guidelines, the condition for filing a statement of one’s own is, first of all, the existence of a reason, independent of the contractor, preventing the presentation of references or other documents. Explaining this reason, however, is the responsibility of the contractor, who should duly justify his inability to obtain references, including, in particular, the reason independent of him. The evaluation of the contractor’s statement, in turn, will be a matter for the contracting authority, whose task will be to consider whether there were circumstances that would entitle it to waive the requirement to submit references.
The contractor must scrupulously explain the reasons why it is unable to provide the reference, as the contracting authority should be able to verify whether these specific circumstances have occurred and whether they justify the waiver of the reference. This is necessary for the equality of bidders, and therefore the preservation of fair competition, proportionality and transparency in the proceedings. As a minimum, the contractor must demonstrate that it pursued a reference, but for reasons beyond its control did not succeed in doing so.