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Heading “Expert opinion”

Customer may require …
The goal of the project “Tender together”, which is implemented by the Ukrainian Association of Furniture Manufacturers in cooperation with the Ukrainian Association of the Visual Industry and the Donetsk Chamber of Commerce and Industry, is to increase the level of cooperation and trust with joint participation in international and national government procurement. The manuals specially prepared by the relevant specialists upon the request of the project participants are also designed to contribute to the achievement of this goal. They can be found on the UAFM website: https://uafm.com.ua/doslidzhennya-meblevog…/tender-together/
The profitability of joint, group participation in tenders is the red thread that passes through the content of each of the three informational manuals. Co-author of one of them, entitled “Guidelines for Ukrainian companies for participation in international and Ukrainian public procurement, tender procurement expert Anna Sevostyanov, we asked to more thoroughly talk about the selection criteria for group suppliers in accordance with EU Directive 2014 \ 24, which is the main procurement area.
– It is clear that groups of business entities may participate in procurement procedures. Including temporary associations, Customers will not require them to have a legal form to send offers or applications for participation.
If necessary, clients can clarify in the documentation of competitive biddings how groups of business entities must meet the requirements of both economic and financial condition or technical and professional ability specified in Article 58, provided that this is justified for ‘objective reasons and is proportional. Member States may establish standard conditions by explaining how groups of business entities must meet these requirements.
Any conditions for the fulfillment of the contract by such groups of business entities that differ from those applied to individual participants must also be justified by objective reasons and must be proportionate.
– And what is the essence of the proportionality of the conditions imposed on groups of business entities?
– proportionality refers to one of the principles of public procurement. The execution of contracts by groups of business entities may require conditions for individual participants. For example, the requirement may be a general representation or lead partner for the purposes of the procurement procedure or the provision of information on the organizational and legal form of the group.
Customers may require a group of business entities to also acquire a certain legal form when they were awarded a contract, to the extent that such a change is necessary for satisfactory fulfillment of the contract (as it is in practice in most cases happens). And they can already indicate this directly in the contract. This is also provided for by the Directive. However, more often, such requirements are set forth in the tender documentation.
– Please name more requirements that customers can put forward to groups of business entities?
– Customers may require that business entities belong to one of the professional or trade registers, and confirmation.
With regard to the economic and financial situation, customers can establish requirements to confirm that business entities have the necessary economic and financial capabilities to fulfill the contract. For this purpose, customers may require, in particular, that business entities have a certain minimum annual turnover, including a certain minimum turnover in the field of activity under the contract. In addition, customers may require that business entities provide information on their annual reports, specified ratios, for example, between assets and liabilities. They may also require an appropriate level of professional liability insurance.
The minimum annual turnover, should be the subjects of management, should not exceed the estimated value of the contract more than doubled, except for properly justified cases, such that relate to special risks associated with the nature of the work, services or materials. The customer notes the main reasons for such a requirement in the procurement documents or in the individual report – in accordance with article 84.
The ratio, for example, between assets and liabilities can be taken into account if the customer determines the methods and criteria for such consideration in the procurement documents. Such methods and criteria should be transparent, objective and non-discriminatory.
If the contract is divided into lots, this article applies to each individual lot. However, the customer can establish a minimum annual turnover, should have business entities, with reference to the group of lots if the winner of the auction is awarded several lots that will be executed simultaneously.

With regard to technical and professional skills, customers can set requirements to confirm that business entities have the necessary human and technical resources and experience to fulfill a contract with an appropriate level of quality.

Customers may require, in particular, that business entities have a sufficient level of experience, demonstrating this with appropriate references to contracts executed in the past. The customer may consider that the enterprise does not possess the necessary professional abilities if it finds out that the business entity has conflicting interests that may adversely affect the performance of the contract.
In the procurement procedures of materials requiring placement or installation, services or works, the professional ability of business entities to provide such services can be assessed in terms of their skills, efficiency, experience and reliability.

The “Expert Opinion” rubric was founded within the framework of a grant project with the support of the Swiss Cooperation Office in Ukraine, the project name: “Increasing the level of cooperation and trust with joint participation in international and national government procurement” – TENDER TOGETHER, which is implemented by the Ukrainian Association of Furniture Manufacturers in partnership with the Ukrainian Association of the visual industry and Donetsk Chamber of Commerce

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