Tendering for a contract whilst relying on the capacities of other entities

This possibility exists regardless of the nature of the links existing between itself and these entities, on the condition that it is proven to the contracting authority that the candidate or contractor will effectively have at its disposal the resources of these entities which are necessary for the execution of this contract.

The simple fact that the Directive provides that an economic operator may exercise the capacities of other entities “if necessary”, shall not be interpreted in the sense that it is only on exceptional grounds that such an operator may use them.

In the case submitted to the Court (C-324/14 dated 7 April 2016), the company Partner has been excluded from a public contract relating to the mechanical cleansing of roadways in the City of Warsaw. It intended to take advantage of the capacities of another company, whose participation consisted of a simple consultation and training service, in the absence of any direct participation. In this regard, the Court notes that “In particular, as regards winter cleansing, it is apparent from the order for reference that that service requires specific skills and a detailed knowledge of the topography of the city of Warsaw and, above all, the ability to react immediately in order to attain specific maintenance standards for the roadways within a specific period.” In these circumstances, the Court considers that it is conceivable that the participation of the third-party company as a “simple” consultant and trainer cannot be regarded as sufficient in order to guarantee that the primary contractor would have at its disposal the resources necessary for the performance of the contract.

Lastly, the Court recalls that Directive 2014/24 – which will soon be transposed into Belgian law – makes changes in this regard. It is now provided that economic operators may rely on the capacities of other entities “only where the latter will perform the works or services for which these capacities are required”.