Which references can be requested in a public procurement procedure?

The contracting authority, the Slovenian Chamber of Pharmacy, stated in its tender documentation, among other things, that the tenderer must prove, as a reference, that it has participated in a public procurement procedure for the supply of medicinal products in the field of pharmacy or health care (which is the subject-matter of the call to tender) within the previous three years, as a condition for the recognition of technical and professional competence. 

Taking into account the principles of public procurement – particularly the principle of equal treatment of tenderers laid down in Article 7 of the Public Procurement Act (“ZJN-3”) and the principle of proportionality laid down in Articles 8 and 76 of the ZJN-3 – the DKOM emphasised in its Decision that the substantive requirements of the contracting authority must be set out in such a way that the individual criteria of reference are proportionate and related to the subject-matter of the procurement. 

On this legal basis, DKOM predictably found that the reference requirement was related to the subject-matter of the procurement, since the subject-matter of the procurement in question is consulting in a procurement procedure for the supply of medicinal products to public pharmacies. However, DKOM also found that such a reference requirement goes beyond what is reasonably necessary to achieve the objective of ensuring that the procurement is carried out by a qualified and experienced entity. In its reasoning, the DKOM stated that the complex and extensive nature of the subject-matter of the planned public contract and the specific and specifically regulated area of the law do not in themselves allow for the conclusion that a tenderer who has not yet participated in the performance of a public procurement contract for the purchase of medicinal products (but who has participated in the performance of a public procurement contract with a different subject-matter) is not qualified to advise on the performance of that public procurement contract. 

The Decision in question thus indicates to a certain extent when a particular reference is considered to be disproportionate to the subject-matter of the procurement. The DKOM decision is very casuistic and short on detailed criteria or conditions that should be met in order for the requested reference to be considered legitimate. However, from out reading of the reasoning DKOM has nevertheless made it clear that in each specific case it is necessary to assess: (i) whether the contracting authority has objectively justified and has justifiable reasons related to the subject-matter of the public contract for requiring the submission of references (and therefore for distinguishing between business entities that do and do not provide such references); and (ii) whether such a requirement is too restrictive. It will thus be necessary to assess in each individual case whether the required reference is really necessary for the performance of the specific public procurement.

Author: Matevž Klobučar, Attorney-at-Law