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Updated last 26.03.2021

When applying for public procurement, the candidates/participants may apply, referring to third parties, relying to subcontractors or as part of a combination.

Third parties. Referral to the capacity of third parties

According to the Public Procurement Act (PPA) a third person is any person, different from the candidate/participant. Candidates/participants may, for a specific procurement, refer to the capacity of third parties, in order to prove the fulfilment of the selection criteria, related to the economic and financial condition, the technical and professional capabilities (art. 65, para. 1 of the PPA). The candidates/participants cannot refer to the capacity of third parties regarding the selection criteria, related to the eligibility (qualification) for exercising professional activity [1]. In relation to the criteria for the professional competence and experience for the procurement’s performance, the applicants / participants may use the capacities of third parties only if these parties will participate in the execution of the part of the procurement, for which such capacities are required. When the candidate/participant refers to the capacity of third parties, he must be able to prove that such third parties’ resources would be available to him. The third parties shall meet the respective selection criteria, for the proving of which the applicant or participant will use their capacities, and there shall be no grounds for removal from the procedure in relation to these third parties.

Important to know
	The Contracting Authority may request from the candidate/participant to replace the specified third parties and/or subcontractors, if they fail to meet the respective selection criteria or in case of presence of circumstances, necessitating their elimination from the procedure, due to a change in the circumstances prior to the signing of the public procurement contract.

If the candidate or participant has specified that he shall use the capacity of third parties for ensuring conformity with the selection criteria or that he shall use subcontractors, a separate ESPD will be provided for each of these persons (art. 67, para. 2 of the PPA).

Subcontractors

Within the meaning of the PPA, a subcontractor is a third person, who has given consent to perform a certain share of the subject matter of the public procurement. The contracting authority may specify a share in the public procurement notice, which can be performed by subcontractors, setting the minimum and maximum share of the procurement, but not more than 30 per-cent. The intention to use subcontractor(s) is specified by the candidate/participant in the application for participation/offer, as the name of the selected subcontractor, the share in the procurement, which will be assigned, must be specified, as well as the evidence for the obligations, undertaken by the subcontractor, for the performance of the respective share.

There are important specificities with respect to the use of the subcontractors:

• The subcontractors must meet the respective selection criteria in accordance with the type and share of the procurement, and there should be no reasons for their elimination from the procedure (art. 66, para. 2 of the PPA).

• The contractors sign a subcontracting contract  with the subcontractors, specified in the offer (art. 66, para. 3 of the PPA).

• The subcontractors may not re-assign the activities, included in the subject matter of the subcontracting agreement (art. 66, para. 5 of the PPA).

• If the share in the procurement, performed by the subcontractor, may be assigned as a separate part of the procurement to the contractor or the contracting authority, the contracting authority shall pay the respective price of such share to the subcontractor (art. 66, para. 7 of the PPA).

• Irrespective of the option to use subcontractors the responsibility for the performance of the public procurement contract, shall lie with the contractor (art. 66, para. 12 of the PPA).
• If necessary, a replacement or inclusion of a subcontractor during the performance of the public procurement contract is possible, if the subcontractor meets the selection criteria with regard to the share and type of the activities, to be performed, and there are no reasons for elimination with respect to such subcontractors. In this case, the contractor must submit to the contracting authority a copy of the contract with the new subcontractor within three days after it is signed, along with all the documents, proving the absence of any reasons for elimination and the conformity with the selection criteria (art. 66, para. 14 and para. 15).

Important to know
	The Contracting Authority may request from the candidate/participant to replace the specified third parties and/or subcontractors, if they fail to meet the respective selection criteria or in case of presence of circumstances, necessitating their elimination from the procedure, due to a change in the circumstances prior to the signing of the public procurement contract.

If the candidate or participant has specified that she/he shall use the capacity of third parties for proving conformity with the selection criteria or that she/he shall use subcontractors, a separate ESPD will be provided for each of these persons (art. 67, para. 2 of the PPA).

Combinations

The PPA provides an option for combinations, even not in the form of legal entities, to take part in public procurement procedures.

A combination is a temporary form of association of legal entities and/or natural persons, which is usually established in order achieve an objective, shared by the members of the combination. The combination may be both “civil company“, commonly known as  „company, pursuant to the Obligations and Contracts Act (OCA)“(art. 357 and subs. of the OCA), as well as “consortium“, incorporated as a business company as per the Commerce Act (art. 275 of the Commerce Act). The civil companies are established by means of a contract, governing the relations, including liability, between participants.

Key specificities related to the participation of combinations in public procurement procedures:

• It is possible that in the decision for the opening of the procedure, the contracting authority includes a requirement for the incorporation of a legal entity prior to signing the contract, if the awarded participant is a combination, if this is required for the procurement’s performance. The requirement for incorporation of a legal entity is expressly substantiated in the decision for opening the procedure (art. 10, para. 2 of the PPA).

• At participation of associations which are not legal entities, the conformity with the selection criteria is evidenced by the combination of the participant, and not by each of its members, with the exception of the respective registration, submission of a certificate or another condition, required for the fulfilment of the procurement, in conformity with the requirements of a regulatory or administrative act and in compliance with the distribution of the participation of the persons in case of accomplishment of activities, as specified in the combination agreement (art. 59, para. 6 of the PPA).

• Similarly to the individual participants/candidates, the combination may prove compliance with the selection criteria using the capacity of third parties (art. 65, para. 7 of the PPA).

• An European Single Procurement Document (ESPD) is submitted by each member of the combination. If it is necessary to declare circumstances, relevant to the combination, ESPD is also submitted for the combination (art. 67, para. 6 of the PPA).

• The combination is eliminated, even if only one of its members is subject to elimination from the procedure (art. 57, para. 2 of the PPA).
• The contracting authority may include in the conditions for implementation of the public procurement, requirements, referring to combinations, which are different from the conditions, applicable to the individual participants or candidates.

Important to know
	In a public procurement procedure a natural person or legal entity can participate in only one combination. A person, member of a combination or who has given his consent to be the subcontractor of the candidate/ participant, can’t submit on his own application for participation/offer.

For more information
	For more information on the legislation and methodology in the public procurement area please refer to the website of the: Public Procurement Agency.

[1] The criteria, regarding the capability of performing specific professional activity, are related to the requirement that the candidates or participants must be registered with the Commercial Register and/or the respective professional register, and for foreign persons – in the respective registers in conformity with the legislation of the Member States, where these are established. It is possible, for example, that the contracting authority requires that the structure of the candidates/participants includes persons, registered as engineers with full design qualification, with the register of the Chamber of Engineers in development-project design. In this case the candidates/participants cannot refer to the capacity of third parties to meet this requirement.