The CJEU has interpreted the provisions of Directive no. 24 of 2014 in relation to the obligation to provide information about third parties who will be subcontracted to carry out the work covered by the public procurement agreement.
The Court’s analysis concerns provisions of Portuguese law, but its considerations also apply to the interpretation of Directive no. 24/2014 in Romania.
The CJEU has interpreted the provisions of Directive no. 24 of 2014 in relation to the obligation to provide information about third parties who will be subcontracted to carry out the work covered by the public procurement agreement.
The Court’s analysis is based on the provisions of Portuguese law, which stipulate that, where an economic operator makes use of the capacities of a third party to perform the services in question, and unless the call for tenders provides otherwise, neither the documents relating to that third party’s capacities nor the submission of a commitment by that third party must be requested until after the award of the public agreement in question.
Consequently, under Portuguese law, such a requirement could only be imposed when submitting the application to participate in the tender under a restricted procedure with prior selection. However, a participant in a public procurement procedure was excluded for failing to provide prior information on subcontracted third parties, which led to a dispute.
In light of this situation, the CJEU has ruled that Directive no. 24/2014 must be interpreted as precluding national legislation under which an economic operator intending to rely on another entity for the performance of a public procurement agreement should not transmit documents relating to the capacity of that entity and its commitment until after the agreement in question has been awarded.
It follows from this judgment that information on subcontracted third parties must be provided before the agreement is awarded.
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